II

CASES

ARTICLES 804-819 (Forms of WILLS)

820-824 ( Witnesses to Wills)

EN BANC

[G.R. No. 4275. March 23, 1909. ]

PAULA CONDE, Plaintiff-Appellee, v. ROMAN ABAYA, Defendant-Appellant.

C. Oben, for Appellant.

L. Joaquin, for Appellee.

SYLLABUS

1. ESTATES: ACTION AGAINST EXECUTION OR ADMINISTRATIONS. While an estate is in the

course of settlement in a special proceeding, no ordinary action can be maintained by a person claiming to be
an heir, against the executor or administrator, for the purpose of having his rights in the estate determined.
(Pimentel v. Palanca, 5 Phil. Rep., 436.)

2. DISTINCTION BETWEEN RIGHTS OF ACTION BY LEGITIMATE AND BY NATURAL CHILDREN

TO COMPEL RECOGNITION. As a general rule, the right of action of a child to enforce recognition of its
legitimacy lasts during the lifetime of such child, but the right of a natural child to compel acknowledgment of
its status continues only during the life of the alleged parents. The right of action for a declaration of
legitimacy is transmitted to the heirs of the child only when the latter dies during minority or while insane, or
in case the action has already been instituted. Action by a natural child can only be brought against the heirs of
the parents in the event of the death of the parents during the minority of the child, or upon the discovery of a
document, after the death of the parents, expressly acknowledging such child. This right of action which the
law concedes to this natural child is not transmitted to his ascendants or descendants. (Arts. 18 and 137, Civil
Code.)

Per Torres, J., dissenting:chanrob1es virtual 1aw library

3. NATURAL CHILDREN; SUCCESSION AND TRANSMISSION OF RIGHTS TO DEMAND

RECOGNITION. Although article 137 of the Civil Code contains no disposition authorizing the transfer, in
favor of the natural mother in her capacity of heir of her natural child, of the right to judicially demand the
recognition of her child by the heirs of his late natural father; yet there is no express provision therein that
prohibits such transfer or that declares such right to be nontransferable.
 4. ID.; ID. The relation of paternity and filiation between natural parents and children is also of a natural
character, and therefore, reciprocal intestate succession between them is exclusively governed by articles 944
and 945 of the Civil Code.

5. ID.; ID. If the right of succession granted by the law to the natural children corresponds reciprocally to
the natural father or mother in the same cases, and if the estate includes all property, rights and obligations of a
person which do not expire at the latters death, it is certain that, among the rights transferred to the natural
mother by inheritance, at the time of the death of her natural child, is the right held by such child during his
lifetime to demand his recognition as such by his natural father, should the latter still live, or by his heirs.

6. ID.; ID. There is no legal provision that declares the said right to demand the recognition of a natural
child to be nontransferable to the latters heirs, and specially to his natural mother, nor is there any rule
declaring such right extinguished at the death of the natural child.

7. ID.; ID. In the intestate succession of a natural child who dies during his minority, recognized by the law
in favor of his father or mother who have acknowledged him, no limitation has been established excluding the
said right from transferable rights, nor has it been expressly declared that the above-mentioned right to
demand the recognition of the natural child is extinguished at the latters death, wherefore it is necessary to
admit that the mother inherits from the natural child at his death, and that she is entitled to institute the
corresponding action.

DECISION

ARELLANO, C.J. :

From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the Court of
First Instance of La Laguna for the settlement of the intestate estate and the distribution of the property of
Casiano Abaya it appears:chanrob1es virtual 1aw library

I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabina Labadia, died on
the 6th of April 1899; that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom
she states she had by Casiano Abaya, on the 6th of November, 1905, moved the settlement of the said intestate
succession; that an administrator having been appointed for the said estate on the 25th of November, 1905,
Roman Abaya, a son of the said Romualdo Abaya and Sabina Labadia, the parents of the late Casiano Abaya,
came forward and opposed said appointment and claimed it for himself as being the nearest relative of the
deceased; that this was granted by the court below on the 9th of January, 1906; that on the 17th of November,
1906, Roman Abaya moved that, after due process of law, the court declare him to be the sole heir of Casiano
Abaya, to the exclusion of all other persons, especially of Paula Conde, and to be therefore entitled to take
possession of all the property of said estate, and that it be adjudicated to him; and that on November 22, 1906,
the court ordered the publication of notices for the declaration of heirs and distribution of the property of the
estate.
II. That on the 28th of November, 1906, Paula Conde, in reply to the foregoing motion of Roman Abaya, filed
a petition wherein she stated that she acknowledged the relationship alleged by Roman Abaya, but that she
considered that her right was superior to his and moved for a hearing of the matter, and, in consequence of the
evidence that she intended to present she prayed that she be declared to have preferential rights to the property
left by Casiano Abaya, and that the same be adjudicated to her together with the corresponding products
thereof.

III. That the trial was held, both parties presenting documentary and oral evidence, and the court below
entered the following judgment:jgc:chanrobles.com.ph

"That the administrator of the estate of Casiana Abaya should recognize Teopista and Jose Conde as being
natural children of Casiano Abaya; that the petitioner Paula Conde should succeed to the hereditary rights of
her children with respect to the inheritance of their deceased natural father Casiano Abaya; and therefore, it is
hereby declared that she is the only heir to the property of the said intestate estate, to the exclusion of the
administrator, Roman Abaya."cralaw virtua1aw library

IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented the
following statement of errors:chanrob1es virtual 1aw library

1. The fact that the court below found that an ordinary action for the acknowledgment of natural children
under articles 135 and 137 of the Civil Code, might be brought in special probate proceedings.

2. The finding that after the death of a person claimed to be an unacknowledged natural child, the mother of
such presumed natural child, as heir to the latter, may bring an action to enforce the acknowledgment of her
deceased child in accordance with articles 135 and 137 of the Civil Code.

3. The finding in the judgment that the alleged continuous possession of the deceased children of Paula Conde
of the status of natural children of the late Casiano Abaya, has been fully proven in these proceedings; and

4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula Conde, as
improperly found by the court below, the court erred in not having declared that said property should be
reserved in favor of relatives of Casiano Abaya to the third degree, and in not having previously demanded
securities from Paula Conde to guarantee the transmission of the property to those who might fall within the
reservation.

As to the first error assigned, the question is set up as to whether in special proceedings for the administration
and distribution of an intestate estate, an action might be brought to enforce the acknowledgment of the natural
child of the person from whom the inheritance is derived, that is to say, whether one might appear as heir on
the ground that he is a recognized natural child of the deceased, not having been so recognized by the
deceased either voluntarily or compulsory by reason of a preexisting judicial decision, but asking at the same
time that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the deceased
who claim to be entitled to the succession opened in the special proceeding.
According to section 782 of the Code of Civil Procedure

"If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the deceased
person are, or as to the distributive share to which each person is entitled under the law, the testimony as to
such controversy shall be taken in writing by the judge, under oath and signed by witness. Any party in
interest whose distributive share is affected by the determination of such controversy, may appeal from the
judgment of the Court of First Instance determining such controversy to the Supreme Court, within the time
and in the manner provided in the last preceding section."cralaw virtua1aw library

This court has decided the present question in the manner shown in the case of Juana Pimental v. Engracio
Palanca (5 Phil. Rep. 436.)

The main question with regard to the second error assigned, is whether or not the mother of a natural child
now deceased, but who survived the person who, it is claimed, was his natural father, also deceased, may
bring an action for the acknowledgment of the natural filiation in favor of such child in order to appear in his
behalf to receive the inheritance from the person who is supposed to be his natural father.

In order to decide in the affirmative the court below has assigned the following as the only
foundation:jgc:chanrobles.com.ph

"In resolving a similar question Manresa says: An acknowledgment can only be demanded by the natural
child and his descendants whom it shall benefit, and should they be minors or otherwise incapacitated, such
person as legally represents them; the mother may ask it in behalf of her child so long as he is under her
authority. On this point no positive declaration has been made, undoubtedly because it was not considered
necessary. A private action is in question and the general rule must be followed. Elsewhere the same author
adds: It may so happen that the child dies before four years have expired after attaining majority, or that the
document supporting his petition for acknowledgment is discovered after his death, such death perhaps
occurring after his parents had died, as is supposed by article 137, or during their lifetime. In any case such
right of action shall pertain to the descendants of the child whom the acknowledgment may interest. (See
Commentaries to arts. 135 and 137, Civil Code. Vol. I.)

The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks legal and
doctrinal foundation. The power to transmit the right of such action by the natural child to his descendants can
not be sustained under the law, and still less to his mother.

It is without any support in law because the rule laid down in the code is most positive, limiting in form, when
establishing the exception for the exercise of such right of action after the death of the presumed parents, as is
shown hereafter. It is not supported by any doctrine, because up to the present time no argument has been
presented, upon which even an approximate conclusion could be based.

Although the Civil Code considerably improved the condition of recognized natural children, granting them
rights and actions that they did not possess under the former laws, they were not, however, placed upon the
same plane as legitimate ones. The difference that separates these two classes of children is still great, as
proven by so many articles dealing with the rights of the family and with succession in relation to the
members thereof. It may be laid down as a legal maxim, that whatever the code does not grant to the
legitimate children, or in connection with their rights, must still less be understood as granted to recognized
natural children or in connection with their rights. There is not a single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the
acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family of the
father or the mother who recognizes him, and affords him a participation in the rights of the family, relatively
advantageous according to whether they are alone or whether they concur with other individuals of the family
of his purely natural father or mother.

Thus, in order to consider the spirit of the Civil Code nothing is more logical than to establish a comparison
between an action to claim the legitimacy, and one to enforce acknowledgment.

"Art. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall
be transmitted to its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be
allowed a period of five years in which to institute the action.

"The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before
then.

"Art. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the
presumed parents, except in the following cases:jgc:chanrobles.com.ph

"1. If the father or mother died during the minority of the child, in which case the latter may institute the
action before the expiration of the first four years of its majority.

"2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in
which the child is expressly acknowledged.

"In this case the action must be instituted within the six months following the discovery of such
instrument."cralaw virtua1aw library

On this supposition the first difference that results between one action and the other consists in that the right of
action for legitimacy lasts during the whole lifetime of the child, that is, it can always be brought against the
presumed parents or their heirs by the child itself, while the right of action for the acknowledgment of a
natural child does not last his whole lifetime, and, as a general rule, it can not be instituted against the heirs of
the presumed parents, inasmuch as it can be exercised only during the life of the presumed parents.

With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of the
obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the most radical
difference in that the former continues during the life of the child who claims to be legitimate, and he may
demand it either directly and primarily from the said presumed parents, or indirectly and secondarily from the
heirs of the latter; while the second does not endure for life; as a general rule, it only lasts during the life of the
presumed parents. Hence the other difference, derived as a consequence, that an action for legitimacy is
always brought against the heirs of the presumed parents in case of the death of the latter, while the action for
acknowledgment is not brought against the heirs of such parents, with the exception of the two cases
prescribed by article 137 transcribed above.

So much for the passive transmission of the obligation to admit the legitimate filiation, or to acknowledge the
natural filiation.

As to the transmission to the heirs of the child of the latters action to claim his legitimacy, or to obtain the
acknowledgment of his natural filiation, it is seen that the code grants it in the first case, but not the second. It
contains provisions for the transmission of the right of action which, for the purpose of claiming his legitimacy
inheres in the child, but it does not say a word with regard to the transmission of the right to obtain the
acknowledgment of the natural filiation.

Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of action which
devolves upon the child to claim his legitimacy under article 118, may be transmitted to his heirs in certain
cases designated in the said article; (2) That the right of action for the acknowledgment of natural children to
which article 137 refers, can never be transmitted, for the reason that the code makes no mention of it in any
case, not even as an exception.

It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure
acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his
heirs, while the right of action to claim legitimacy from his predecessor is not expressly, independently, or, as
a general rule, conceded to the heirs of the legitimate child, but only relatively and as an exception.
Consequently, the pretension that the right of action on the part of the child to obtain the acknowledgment of
his natural filiation is transmitted to his descendants is altogether unfounded. No legal provision exists to
sustain such pretension, nor can an argument of presumption be based on the lesser claim when there is no
basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs
of the natural child on a better footing than the heirs of the legitimate one, when, as a matter of fact, the
position of a natural child is no better than, nor even equal to, that of a legitimate child.

From the express and precise precepts of the code the following conclusions are derived:chanrob1es virtual
1aw library

The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the
right to claim the acknowledgment of a natural child lasts only during the life of his presumed parents.

Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life, he may
exercise it either against the presumed parents, or their heirs; while the right of action to secure the
acknowledgment of a natural child, since it does not last during his whole life, but depends on that of the
presumed parents, as a general rule can only be exercised against the latter.

Usually the right of action for legitimacy devolving upon the child is of a personal character and pertains
exclusively to him, only the child may exercise it at any time during his lifetime. As an exception, and in three
cases only, it may be transmitted to the heirs of the child, to wit, if he died during his minority, or while
insane, or after action had been already instituted.

An action for the acknowledgment of a natural child may, as an exception, be exercised against the heirs of the
presumed parents in two cases: first, in the event of the death of the latter during the minority of the child, and
second, upon the discovery of some instrument of express acknowledgment of the child, executed by the
father or mother, the existence of which was unknown during the life of the latter.

But as such action for the acknowledgment of a natural child can only be exercised by him. It can not be
transmitted to his descendants, or to his ascendants.

In support of the foregoing the following authorities may be cited:chanrob1es virtual 1aw library

Sanchez Roman, in his Treatise on Civil Law, propounds the question as to whether said action should be
considered transmissive to the heirs or descendants of the natural child, whether he had or had not exercised it
up to the time of his death, and decides it as follows;

"There is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that
the right of action to claim the acknowledgment of a natural child is transmitted by analogy to his heirs on the
same conditions and terms that it is transmitted to the descendants of a legitimate child, to claim his
legitimacy, under article 118, but nothing more; because on this point nothing warrants placing the heirs of a
natural child on a better footing than those of the legitimate child, and even to compare them would not fail to
be a strained and questionable matter, and one of great difficulty for decision by the courts, for the simple
reason that for the heirs of the legitimate child, the said article 118 exists, while for those of the natural child,
as we have said, there is no provision in the code authorizing the same, although on the other hand there is
none that prohibits it." (Vol. V.)

Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court of
Spain," commenting upon article 137, say:jgc:chanrobles.com.ph

"Article 118, taking into account the privileges due to the legitimacy of children, grants them the right to claim
said legitimacy during their lifetime, and even authorizes the transmission of said right for the space of five
years to the heirs thereof, if the child die during his minority or in a state of insanity. But as article 137 is
based on the consideration that in the case of a natural child, ties are less strong and sacred in the eyes of the
law, it does not fix such a long and indefinite period for the exercise of the action; it limits it to the life of the
parents, excepting in the two cases mentioned in said article; and it does not allow, as does article 118, the
action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for that reason it might be
deemed on general principles of law to consent to it, such a supposition is inadmissible for the reason that a
comparison of both articles shows that the silence of the law in the latter case is not, nor can it be, an
omission, but a deliberate intent to establish a wide difference between the advantages granted to a legitimate
child and to a natural one."cralaw virtua1aw library

(Ibid., Vol. II, 171.)

Navarro Amandi (Cuestionario del Codigo Civil) raises the question: "Can the heirs of a natural child claim
the acknowledgment in those cases wherein the father or mother are under obligation to acknowledge" ? And
says:jgc:chanrobles.com.ph

"Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of investigation
forms a part of the estate of the child, and along with his patrimony is transmitted to his heirs. The affirmation
is altogether too categorical to be admissible. If it were correct the same thing would happen as when the
legitimacy of a child is claimed, and as already seen, the right of action to demand the legitimacy is not
transmitted to the heirs in every case and as an absolute right, but under certain limitations and circumstances.
Now, were we to admit the doctrine of the court of Rennes, the result would be that the claim for natural
filiation would be more favored than one for legitimate filiation. This would be absurd, because it can not be
conceived that the legislator should have granted a right of action to the heirs of the natural child, which is
only granted under great limitations and in very few cases to those of a legitimate one. Some persons insist
that the same rules that govern legitimate filiation apply by analogy to natural filiation, and that in this
conception the heirs of the natural child are entitled to claim it in the cases prescribed by article 118. The
majority, however, are inclined to consider the right to claim acknowledgment as a personal right, and
consequently, not transmissive to the heirs. Really there are not legal grounds to warrant the transmission."
(Vol. 2, 229.)

In a decision like the present one it is impossible to bring forward the argument of analogy for the purpose of
considering that the heirs of the natural child are entitled to the right of action which article 118 concedes to
the heirs of the legitimate child. The existence of a provision for the one case and the absence thereof for the
other is a conclusive argument that inclusio unius est exclusio alterius, and it can not be understood that the
provision of law should be the same when the same reason does not hold in the one case as in the other.

The theory of the law of transmission is also entirely inapplicable in this case. This theory, which in the
Roman Law expressed the general rule that an heir who did not accept an inheritance during his lifetime was
incapacitated from transmitting it to his own heirs, included at the same time the idea that if the inheritance
was not transmitted because the heir did not possess it, there were, however, certain things which the heir held
and could transmit. Such was the law and the right to accept the inheritance, for the existing reason that all
rights, both real and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per
omnia. According to article 659 of the Civil Code, "the inheritance includes all the property, rights, and
obligations of a person, which are not extinguished by his death." If the mother is the heir of her natural child,
and the latter, among other rights during his lifetime was entitled to exercise an action for his acknowledgment
against his father, during the life of the latter, or after his death in some of the excepting cases of article 137,
such right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so
understood by the court of Rennes when it considered the right in question, not as a personal and exclusive
right of the child which is extinguished by his death, but as any other right which might be transmitted after
his death. This right of supposed transmission is even less tenable than that sought to be sustained by the
argument of analogy.

The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of the child
who claims acknowledgment as a natural child. And it is evident that the right of action to claim his legitimacy
is not one of those rights which the legitimate child may transmit by inheritance to his heirs; it forms no part
of the component rights of his inheritance. If it were so, there would have been no necessity to establish its
transmissibility to heirs as an exception in the terms and conditions of article 118 of the code. So that, in order
that it may constitute a portion of the childs inheritance, it is necessary that the conditions and the terms
contained in article 118 shall be present, since without them, the right that the child held during his lifetime,
being personal and exclusive in principle, and therefore, as a general rule not susceptible of transmission,
would and should have been extinguished by his death. Therefore, where no express provision like that of
article 118 exists, the right of action for the acknowledgment of a natural child is, in principle and without
exception, extinguished by his death, and can not be transmitted as a portion of the inheritance of the deceased
child.

On the other hand, it said right of action formed a part of the childs inheritance, it would be necessary to
establish the doctrine that the right to claim such an acknowledgment from the presumed natural father and
from his heirs is an absolute right of the heirs of the child, not limited by certain circumstances as in the case
of the heirs of a legitimate child; and if it is unreasonable to compare a natural child with a legitimate one to
place the heirs of a natural child and his inheritance on a better footing than those of a legitimate child would
not only be unreasonable, but, as stated in one of the above citations, most absurd and illegal in the present
state of the law and in accordance with the general principles thereof.

For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts, without any
special ruling as to the costs of this instance.

Mapa, Johnson, Carson and Willard, JJ., concur.

Separate Opinions

TORRES, J., dissenting:chanrob1es virtual 1aw library

The questions arising from the facts and points of law discussed in this litigation between the parties thereto,
decided in the judgment appealed from, and set up and discussed in this instance by the said parties in their
respective briefs, are subordinate in the first place to the main point, submitted among others to the decision of
this court, that is, whether the right of action brought to demand from the natural father, or from his heirs, the
acknowledgment of the natural child which the former left at his death was, by operation of the law,
transmitted to the natural mother by reason of the death of the said child acknowledged by her.

The second error assigned by the appellant in his brief refers exclusively to this important point of law.

Article 846 of the Civil Code prescribes:jgc:chanrobles.com.ph

"The right of succession which the law grants natural children extends reciprocally in similar cases to the
natural father or mother."cralaw virtua1aw library

Article 944 reads:jgc:chanrobles.com.ph

"If the acknowledged natural or legitimized child should die without issue, either legitimate or acknowledged
by it, the father or mother who acknowledged it shall succeed to its entire estate, and if both acknowledged it
and are alive, they shall inherit from it share and share alike."cralaw virtua1aw library

It can not be inferred from the above legal provisions that from the right of succession which the law grants
the natural father or mother upon the death of their natural child, the right of the heirs of any of the said
parents to claim the acknowledgment of the natural child is excluded. No article is to be found in the Civil
Code that expressly provides for such exclusion or elimination of the right of the heirs of the deceased child to
claim his acknowledgment.

If under article 659 of said code, the inheritance includes all the property, rights, and obligations of a person,
which are not extinguished by his death, it is unquestionable that among such rights stands that which the
natural child had, while alive, to claim his acknowledgment as such from his natural father, or from the heirs
of the latter. There is no reason or legal provision whatever to prevent the consideration that the right to claim
acknowledgment of the filiation of a deceased child from his natural father, or from the heirs of the latter, is
included in the hereditary succession of the deceased child in favor of his natural mother.

It is to be regretted that such an eminent writer as Manresa is silent on this special point; or that he is not very
explicit in his comments on article 137 of the Civil Code. Among the various noted writers on law, Professor
Sanchez Roman is the only one who has given his opinion in a categorical manner as to whether or not the
right of action for the acknowledgment of a deceased natural child shall be considered transmissive to his
heirs, as may be seen from the following:jgc:chanrobles.com.ph

"In order to complete the explanation of this article 137 of the Civil Code, three points must be decided: (1)
Against whom shall an action for acknowledgment be brought under the cases and terms to which the two
exceptions indicated in paragraphs 1 and 2 of article 137 refer? (2) Who is to represent the miner in bringing
this action when neither the father nor the mother has acknowledged him? (3) Should this right of action be
considered as transmitted to the heirs or descendants of the natural child whether or not it was exercised at the
time of his death?

"With respect to the third, there is an entire absence of legal provisions, and at most, it might be deemed
admissible as a solution, that the right of action to claim the acknowledgment of a natural child is transmitted
by analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of the
legitimate child, to claim his legitimacy, under article 118, but no more; because on this point nothing
warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to
compare them would not fail to be a strained and questionable matter, and one of great difficulty for decision
by the courts, for the simple reason that for the heirs of the legitimate child the said article 118 exists, while
for those of the natural child, as we have said, there is no provision in the code authorizing the same, although
on the other hand there is none that prohibits it."cralaw virtua1aw library

Certainly there is no article in the Civil Code, or any special law that bars the transmission to the heirs of a
natural child, particularly to his natural mother, of the right of action to claim the acknowledgment of said
natural child from the heirs of his deceased natural father.

According to the above-cited article 944 of the Civil Code, the only persons designated to succeed to the
intestate estate of a natural child who died during minority or without issue are its natural father or mother
who acknowledged it; consequently if by operation of the law his parents are his legal successors or heirs, it is
unquestionable that by reason of the childs death the property, rights, and obligations of the deceased minor
were, as a matter of fact, transmitted to them, among which was the right to demand the acknowledgment of
the said deceased natural child from the heirs of the deceased natural father or mother, respectively, on
account of having enjoyed uninterruptedly the status of natural child of the said deceased parents. (Arts. 135
and 136, Civil Code.)

At the death of the children, Teopista in 1902, and Jose in 1903, during their minority, and after the death of
their natural father which took place in 1899, the natural mother of the said minors, Paula Conde, succeeded
them in all of their property and rights, among which must necessarily appear and be included the right of
action to claim the acknowledgment of said two children from the heirs of Icasiano Abaya, their deceased
natural father. There is no legal provision or precept whatever excluding such right from those which, by
operation of the law, were transmitted to the mother, Paula Conde, or expressly declaring that the said right to
claim such acknowledgment is extinguished by the death of the natural children.

It is true that, as a general rule, an action for acknowledgment can not be brought by a surviving natural child
after the death of his parents, except in the event that he was a minor at the time of the death of either of his
parents, as was the case with the minors Teopista and Jose Conde, who, if living, would unquestionably be
entitled to institute an action for acknowledgment against the presumed heirs of their natural father; and as
there is no law that provides that said right is extinguished by the death of the same, and that the mother did
not inherit it from the said minors, it is also unquestionable that Paula Conde, the natural mother and successor
to the rights of said minors, is entitled to exercise the corresponding action for acknowledgment.

If the natural mother had no right of action against the heirs of the natural father, for the acknowledgment of
her natural child, the unlimited and unconditional reciprocity established by article 846 of the code would
neither be true nor correct. It should be noticed that the relation of paternity and that of filiation between the
above-mentioned father and children are both natural in character; therefore, the intestate succession of the
said children of Paula Conde is governed exclusively by articles 944 and 945 of the said code.

It is true that nothing is provided by article 137 with reference to the transmission to the natural mother of the
right to claim the acknowledgment of her natural children, but, as Sanchez Roman says, it does not expressly
prohibit it; and as opposed to the silence of the said article, we find the provisions of articles 846 and 944 of
the Civil code, which expressly recognized the right of the natural mother to succeed her natural child, a right
which is transmitted to her by operation of law from the moment that the child ceases to exist.

The question herein does not bear upon the right of a child to claim his legitimacy, as provided in article 118
of the code, nor is it claimed that the rights of natural children and of their mother are equal to those of
legitimate ones, even by analogy.

The foundations of this opinion are based solely on the provisions of the above-mentioned articles of the code,
and I consider that they are sustainable so long as it is not positively proven that the so often-mentioned right
of action for acknowledgment is extinguished by the death of the minor natural child, and is not transmitted to
the natural mother by express declaration or prohibition of the law, together with the property and other rights
in the intestate succession.

In view of the considerations above set forth it is my opinion that it should be held: That Paula Conde, as the
natural mother and sole heir of her children Teopista and Jose, was and is entitled to the right to institute
proceedings to obtain the acknowledgment of the latter as natural children of the late Icasiano Abaya, from
Roman Abaya, as heir and administrator of the estate of the said Icasiano Abaya; and that the said Teopista
and Jose who died during their minority, three years after the death of their father, should be considered and
acknowledged as such natural children of the latter, for the reason that while living they uninterruptedly
enjoyed the status of his natural children. The judgment appealed from should be affirmed without any special
ruling as to costs.

With regard to the declaration that the property of the late Icasiano, which Paula Conde might take, are of a
reservable character, together with the other matter contained in the third error assigned by the appellant to the
said judgment, the writer withholds his opinion until such time as the question may be raised between the
parties in proper form.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33187 March 31, 1980

CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE, petitioners,

vs.
VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA
MORETO, ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO
MENDOZA, LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO
MORETO and LORENZO MENDOZA, respondents.

E.P. Caguioa for petitioners.

Benjamin C. Yatco for respondents.

GUERRERO, J.:

This is a petition for certiorari by way of appeal from the decision of the Court of Appeals 1 in CA-G.R. No.
35962-R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. Cornelio Pamplona, et al., Defendants-
Appellants," affirming the decision of the Court of First Instance of Laguna, Branch I at Bian.

The facts, as stated in the decision appealed from, show that:

Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they acquired adjacent
lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate, situated in Calamba, Laguna, containing
781-544 and 1,021 square meters respectively and covered by certificates of title issued in the name of
"Flaviano Moreto, married to Monica Maniega."

The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6) children, namely,
Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto.

Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs Vivencio, Marcelo,
Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto.

Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria Tuiza.

La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely, herein plaintiffs Pablo,
Severina, Lazaro, and Lorenzo, all surnamed Mendoza.

Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff Josefina Moreto.

Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his brother plaintiff Leandro
Moreto and the other plaintiffs herein.

On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna.

On July 30, 1952, or more than six (6) years after the death of his wife Monica Maniega, Flaviano Moreto,
without the consent of the heirs of his said deceased wife Monica, and before any liquidation of the conjugal
partnership of Monica and Flaviano could be effected, executed in favor of Geminiano Pamplona, married to
defendant Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The deed of
sale (Exh. "1") contained a description of lot No. 1495 as having an area of 781 square meters and covered by
transfer certificate of title No. 14570 issued in the name of Flaviano Moreto, married to Monica Maniega,
although the lot was acquired during their marriage. As a result of the sale, the said certificate of title was
cancelled and a new transfer certificate of title No. T-5671 was issued in the name of Geminiano Pamplona
married to Apolonia Onte (Exh. "A").

After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses Geminiano Pamplona and
Apolonia Onte constructed their house on the eastern part of lot 1496 as Flaviano Moreto, at the time of the
sale, pointed to it as the land which he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son
of the spouses Geminiano Pamplona and Apolonia Onte, also built his house within lot 1496 about one meter
from its boundary with the adjoining lot. The vendor Flaviano Moreto and the vendee Geminiano Pamplona
thought all the time that the portion of 781 square meters which was the subject matter of their sale transaction
was No. 1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh. "1") although the
fact is that the said portion sold thought of by the parties to be lot No. 1495 is a part of lot No. 1496.

From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged their house and they even
constructed a piggery corral at the back of their said house about one and one-half meters from the eastern
boundary of lot 1496.
On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded on the defendants to
vacate the premises where they had their house and piggery on the ground that Flaviano Moreto had no right
to sell the lot which he sold to Geminiano Pamplona as the same belongs to the conjugal partnership of
Flaviano and his deceased wife and the latter was already dead when the sale was executed without the
consent of the plaintiffs who are the heirs of Monica. The spouses Geminiano Pamplona and Apolonia Onte
refused to vacate the premises occupied by them and hence, this suit was instituted by the heirs of Monica
Maniega seeking for the declaration of the nullity of the deed of sale of July 30, 1952 above-mentioned as
regards one-half of the property subject matter of said deed; to declare the plaintiffs as the rightful owners of
the other half of said lot; to allow the plaintiffs to redeem the one-half portion thereof sold to the defendants.
"After payment of the other half of the purchase price"; to order the defendants to vacate the portions occupied
by them; to order the defendants to pay actual and moral damages and attorney's fees to the plaintiffs; to order
the defendants to pay plaintiffs P120.00 a year from August 1958 until they have vacated the premises
occupied by them for the use and occupancy of the same.

The defendants claim that the sale made by Flaviano Moreto in their favor is valid as the lot sold is registered
in the name of Flaviano Moreto and they are purchasers believing in good faith that the vendor was the sole
owner of the lot sold.

After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that there
was mutual error between Flaviano Moreto and the defendants in the execution of the deed of sale because
while the said deed recited that the lot sold is lot No. 1495, the real intention of the parties is that it was a
portion consisting of 781 square meters of lot No. 1496 which was the subject matter of their sale transaction.

After trial, the lower court rendered judgment, the dispositive part thereof being as follows:

WHEREFORE, judgment is hereby rendered for the plaintiffs declaring the deed of absolute
sale dated July 30, 1952 pertaining to the eastern portion of Lot 1496 covering an area of 781
square meters null and void as regards the 390.5 square meters of which plaintiffs are hereby
declared the rightful owners and entitled to its possession.

The sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square meters of Lot
1496 measuring 390.5 square meters of which defendants are declared lawful owners and
entitled to its possession.

After proper survey segregating the eastern one-half portion with an area of 390.5 square
meters of Lot 1496, the defendants shall be entitled to a certificate of title covering said portion
and Transfer Certificate of Title No. 9843 of the office of the Register of Deeds of Laguna shall
be cancelled accordingly and new titles issued to the plaintiffs and to the defendants covering
their respective portions.

Transfer Certificate of Title No. 5671 of the office of the Register of Deeds of Laguna covering
Lot No. 1495 and registered in the name of Cornelio Pamplona, married to Apolonia Onte, is
by virtue of this decision ordered cancelled. The defendants are ordered to surrender to the
office of the Register of Deeds of Laguna the owner's duplicate of Transfer Certificate of Title
 No. 5671 within thirty (30) days after this decision shall have become final for cancellation in
accordance with this decision.

Let copy of this decision be furnished the Register of Deeds for the province of Laguna for his
information and guidance.

With costs against the defendants. 2

The defendants-appellants, not being satisfied with said judgment, appealed to the Court of Appeals, which
affirmed the judgment, hence they now come to this Court.

The fundamental and crucial issue in the case at bar is whether under the facts and circumstances duly
established by the evidence, petitioners are entitled to the full ownership of the property in litigation, or only
one-half of the same.

There is no question that when the petitioners purchased the property on July 30, 1952 from Flaviano Moreto
for the price of P900.00, his wife Monica Maniega had already been dead six years before, Monica having
died on May 6, 1946. Hence, the conjugal partnership of the spouses Flaviano Moreto and Monica Maniega
had already been dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil Code). The records
show that the conjugal estate had not been inventoried, liquidated, settled and divided by the heirs thereto in
accordance with law. The necessary proceedings for the liquidation of the conjugal partnership were not
instituted by the heirs either in the testate or intestate proceedings of the deceased spouse pursuant to Act 3176
amending Section 685 of Act 190. Neither was there an extra-judicial partition between the surviving spouse
and the heirs of the deceased spouse nor was an ordinary action for partition brought for the purpose.
Accordingly, the estate became the property of a community between the surviving husband, Flaviano Moreto,
and his children with the deceased Monica Maniega in the concept of a co-ownership.

The community property of the marriage, at the dissolution of this bond by the death of one of
the spouses, ceases to belong to the legal partnership and becomes the property of a
community, by operation of law, between the surviving spouse and the heirs of the deceased
spouse, or the exclusive property of the widower or the widow, it he or she be the heir of the
deceased spouse. Every co-owner shall have full ownership of his part and in the fruits and
benefits derived therefrom, and he therefore may alienate, assign or mortgage it, and even
substitute another person in its enjoyment, unless personal rights are in question. (Marigsa vs.
Macabuntoc, 17 Phil. 107)

In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no reason in law why the heirs
of the deceased wife may not form a partnership with the surviving husband for the management and control
of the community property of the marriage and conceivably such a partnership, or rather community of
property, between the heirs and the surviving husband might be formed without a written agreement."
In Prades vs. Tecson, 49 Phil. 230, the Supreme Court held that "(a)lthough, when the wife dies, the surviving
husband, as administrator of the community property, has authority to sell the property withut the
concurrence of the children of the marriage, nevertheless this power can be waived in favor of the children,
with the result of bringing about a conventional ownership in common between the father and children as to
such property; and any one purchasing with knowledge of the changed status of the property will acquire only
the undivided interest of those members of the family who join in the act of conveyance.

It is also not disputed that immediately after the execution of the sale in 1952, the vendees constructed their
house on the eastern part of Lot 1496 which the vendor pointed out to them as the area sold, and two weeks
thereafter, Rafael who is a son of the vendees, also built his house within Lot 1496. Subsequently, a cemented
piggery coral was constructed by the vendees at the back of their house about one and one-half meters from
the eastern boundary of Lot 1496. Both vendor and vendees believed all the time that the area of 781 sq.
meters subject of the sale was Lot No. 1495 which according to its title (T.C.T. No. 14570) contains an area of
781 sq. meters so that the deed of sale between the parties Identified and described the land sold as Lot 1495.
But actually, as verified later by a surveyor upon agreement of the parties during the proceedings of the case
below, the area sold was within Lot 1496.

Again, there is no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Onte as well as that
of their son Rafael Pamplona, including the concrete piggery coral adjacent thereto, stood on the land from
1952 up to the filing of the complaint by the private respondents on July 25, 1961, or a period of over nine (9)
years. And during said period, the private respondents who are the heirs of Monica Maniega as well as of
Flaviano Moreto who also died intestate on August 12, 1956, lived as neighbors to the petitioner-vendees, yet
lifted no finger to question the occupation, possession and ownership of the land purchased by the Pamplonas,
so that We are persuaded and convinced to rule that private respondents are in estoppel by laches to claim half
of the property, in dispute as null and void. Estoppel by laches is a rule of equity which bars a claimant from
presenting his claim when, by reason of abandonment and negligence, he allowed a long time to elapse
without presenting the same. (International Banking Corporation vs. Yared, 59 Phil. 92)

We have ruled that at the time of the sale in 1952, the conjugal partnership was already dissolved six years
before and therefore, the estate became a co-ownership between Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica Maniega. Article 493 of the New Civil Code is applicable and it
provides a follows:

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are involve. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership.

We agree with the petitioner that there was a partial partition of the co-ownership when at the time of the sale
Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the petitioners-vendees
on which the latter built their house and also that whereon Rafael, the son of petitioners likewise erected his
house and an adjacent coral for piggery.

Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned three parcels of land
denominated as Lot 1495 having an area of 781 sq. meters, Lot 1496 with an area of 1,021 sq. meters, and Lot
4545 with an area of 544 sq. meters. The three lots have a total area of 2,346 sq. meters. These three parcels of
lots are contiguous with one another as each is bounded on one side by the other, thus: Lot 4545 is bounded on
the northeast by Lot 1495 and on the southeast by Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot
1496 is bounded on the west by Lot 4545. It is therefore, clear that the three lots constitute one big land. They
are not separate properties located in different places but they abut each other. This is not disputed by private
respondents. Hence, at the time of the sale, the co-ownership constituted or covered these three lots adjacent to
each other. And since Flaviano Moreto was entitled to one-half pro-indiviso of the entire land area or 1,173 sq.
meters as his share, he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the
Pamplona spouses. Indeed, there was still a remainder of some 392 sq. meters belonging to him at the time of
the sale.

We reject respondent Court's ruling that the sale was valid as to one-half and invalid as to the other half for the
very simple reason that Flaviano Moreto, the vendor, had the legal right to more than 781 sq. meters of the
communal estate, a title which he could dispose, alienate in favor of the vendees-petitioners. The title may be
pro-indiviso or inchoate but the moment the co-owner as vendor pointed out its location and even indicated
the boundaries over which the fences were to be erectd without objection, protest or complaint by the other co-
owners, on the contrary they acquiesced and tolerated such alienation, occupation and possession, We rule that
a factual partition or termination of the co-ownership, although partial, was created, and barred not only the
vendor, Flaviano Moreto, but also his heirs, the private respondents herein from asserting as against the
vendees-petitioners any right or title in derogation of the deed of sale executed by said vendor Flaiano Moreto.

Equity commands that the private respondents, the successors of both the deceased spouses, Flaviano Moreto
and Monica Maniega be not allowed to impugn the sale executed by Flaviano Moreto who indisputably
received the consideration of P900.00 and which he, including his children, benefitted from the same.
Moreover, as the heirs of both Monica Maniega and Flaviano Moreto, private respondents are duty-bound to
comply with the provisions of Articles 1458 and 1495, Civil Code, which is the obligation of the vendor of the
property of delivering and transfering the ownership of the whole property sold, which is transmitted on his
death to his heirs, the herein private respondents. The articles cited provide, thus:

Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the
ownership of and to deliver a determinate thing, and the other part to pay therefore a price
certain in money or its equivalent.

A contract of sale may be absolute or conditionial.

Art. 1495. The vendor is bound to transfer the ownership of and deliver, as well as warrant the
thing which is the object of the sale.

Under Article 776, New Civil Code, the inheritance which private respondents received from their deceased
parents and/or predecessors-in-interest included all the property rights and obligations which were not
extinguished by their parents' death. And under Art. 1311, paragraph 1, New Civil Code, the contract of sale
executed by the deceased Flaviano Moreto took effect between the parties, their assigns and heirs, who are the
private respondents herein. Accordingly, to the private respondents is transmitted the obligation to deliver in
full ownership the whole area of 781 sq. meters to the petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half thereof. Private respondents must comply with said
obligation.
The records reveal that the area of 781 sq. meters sold to and occupied by petitioners for more than 9 years
already as of the filing of the complaint in 1961 had been re-surveyed by private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the area from Transfer Certificate of Title No. T-9843 covering Lot
1496 and they are also entitled to the issuance of a new Transfer Certificate of Title in their name based on the
relocation survey.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with
modification in the sense that the sale made and executed by Flaviano Moreto in favor of the petitioners-
vendees is hereby declared legal and valid in its entirely.

Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the eastern portion of Lot
1496 now occupied by said petitioners and whereon their houses and piggery coral stand.

The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq. meters from Certificate of
Title No. 9843 and to issue a new Transfer Certificate of Title to the petitioners covering the segregated area
of 781 sq. meters.

No costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, De Castro and Melencio-Herrera, JJ., concur.

Guerrero v Bihis

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-33365 December 20, 1930

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,

vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.

Montinola, Montinola and Hilado for appellant.

Lopez Vito and Lopez Vito for appellees.

MALCOLM, J.:
The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of Iloilo on the sole
ground that the thumbmarks appearing thereon were not the thumbmarks of the testator. Disregarding the
other errors assigned by the proponent of the will, we would direct attention to the third error which
challenges squarely the correctness of this finding.

The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November
13, 1927. A thumbmark appears at the end of the will and on the left hand margin of each of its pages in the
following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the same
Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is detailed in nature, and disposes of an
estate amounting approximately to P50,000.

For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine thumbmark of
Paulino Diancin, was presented. Photographs of the thumbmarks on the will and of the thumbmark on Exhibit
8 were also offered in evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter gave
as his opinion that the thumbmarks had not been made by the same person .One, Jose G. Villanueva, likewise
attempted to qualify as were authentic. The petition of the proponent of the will to permit the will to be sent to
Manila to be examined by an expert was denied. On one fact only were the opposing witnesses agreed, and
this was that the ink used to make the thumbmarks on the will was of the ordinary type which blurred the
characteristics of the marks, whereas the thumbmark on Exhibit 8 was formed clearly by the use of the special
ink required for this purpose. The trial judge expressed his personal view as being that great differences
existed between the questioned marks and the genuine mar.lawphi1>net

The requirement of the statute that the will shall be "signed" is satisfied not only the customary written
signature but also by the testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks
or fingerprints is of course admissible. The method of identification of fingerprints is a science requiring close
study .Where thumb impressions are blurred and many of the characteristic marks far from clear, thus
rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of
the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting
its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the
questioned thumbmarks, is evident .This we do here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep.,
759, cited in 3 Chamberlayne on the Modern Law of Evidence, sec. 2561, notes 3.)

There is another means of approach to the question and an obvious one. The three instrumental witnesses
united in testifying concerning the circumstances surrounding the execution of the will. It was stated that in
addition to the testator and themselves, on other person, Diosdado Dominado, was present. This latter
individual was called as a witness by the oppositors to the will to identify Exhibit 8. He was later placed on the
witness stand by the proponent on rebuttal, and thereupon declared positively that he was the one who
prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those
of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The testimony of a witness
called by both parties is worthy of credit.

We reach the very definite conclusion that the document presented for probate as the last will of the deceased
Paulino Diancin was, in truth, his will, and that the thumbmarks appearing thereon were the thumbmarks of
the testator .Accordingly, error is found, which means that the judgment appealed from must be, as it is
hereby, reversed, and the will ordered admitted to probate, without special finding as to costs in this instance.

Avancea, C.J., Johnson, Street, Villamor, Ostand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 6845 September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.

JOHNSON, J.:

It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing the
petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the
will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga
Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in the city of Manila on the
11th day of August, 1909. Accompanying said petition and attached thereto was the alleged will of the
deceased. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo Tabora,
and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909.
Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong;
that she had died on the 11th day of August, 1909; that before her death she had executed a last will and
testament; that he was present at the time of the execution of the same; that he had signed the will as a witness;
that Anselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the
will in the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga
Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of Manila; that
before her death she had executed a last will and testament; that he was present at the time said last will was
executed; that there were also present Timoteo Paez and Severo Tabora and a person called Anselmo; that the
said Tomasa Elizaga Yap Caong signed the will in the presence of the witnesses; that he had seen her sign the
will with his own eyes; that the witnesses had signed the will in the presence of the said Tomasa Elizaga Yap
Caong and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily,
and in his judgment, she was in the possession of her faculties; that there were no threats or intimidation used
to induce her to sign the will; that she signed it voluntarily.

No further witnesses were called and there was no further opposition presented to the legalization of the said
will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September,
1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to
probate. The will was attached to the record and marked Exhibit A. The court further ordered that one Yap
Tua be appointed as executor of the will, upon the giving of a bond, the amount of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap
Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of
the said will and desired to intervene and asked that a guardian ad litem be appointed to represent them in the
cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel
La O accepted said appointment, took the oath of office and entered upon the performance of his duties as
guardian ad litem of said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and
presented a motion in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the
29th day of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then
mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence upon the
part of persons who were to receive a benefit from the same, and because the said Tomasa Elizaga Yap
Caong had no intention of executing the same.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap
Caong had executed another will, with all the formalities required by law, upon the 6th day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent
in presenting their opposition to the legalization of the will, said negligence was excusable, on account of their
age.

Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of
September, 1909, and to grant to said minors an opportunity to present new proof relating to the due execution
of said will. Said petition was based upon the provisions of section 113 of the Code of Procedure in Civil
Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to
said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of
Severo Tabora, Clotilde and Cornelia Serrano.

Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A. S.
Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the 18th day of
March, 1910, and directed that notice should be given to the petitioners of said rehearing and to all other
persons interested in the will. At the rehearing a number of witnesses were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the deceased,
Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of
that allegation, the protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon testified
that he was a professor and an expert in handwriting, and upon being shown the will (of August 11, 1909)
Exhibit A, testified that the name and surname on Exhibit A, in his judgment were written by two different
hands, though the given name is the same as that upon Exhibit 1 (the will of August 6, 1909), because he
found in the name "Tomasa" on Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1; that
comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the character of the writing
was thoroughly distinguished and different by the tracing and by the direction of the letters in the said two
exhibits; that from his experience and observation he believed that the name "Tomasa" and "Yap Caong,"
appearing in the signature on Exhibit A were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he
was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that
was, except that he had concluded his course in the year 1882; that since that time he had been a telegraph
operator for seventeen years and that he had acted as an expert in hand- writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of
August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request
and under her directions; that she had signed it; that the same had been signed by three witnesses in her
presence and in the presence of each other; that the will was written in her house; that she was sick and was
lying in her bed, but that she sat up to sign the will; that she signed the will with great difficulty; that she was
signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew
Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A
(the will of August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became
familiar with the contents of the will because she signed it before he (the witness) did; that he did not know
whether anybody there told her to sign the will or not; that he signed two bills; that he did not know La O; that
he did not believe that Tomasa had signed the will (Exhibit A) before he arrived at the house; that he was not
sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there
was a screen at the door and he could not see; that he was called a a witness to sign the second will and was
told by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from the
patient, in the house but outside the room where the patient was; that the will was signed by Paez and himself;
that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or not; that
he was not sure whether Tomasa Elizaga Yap Caong could see the table on which the will was written at the
time it was signed or not; that there were many people in the house; that he remembered the names of Pedro
and Lorenzo; that he could not remember the names of any others; that the will remained on the table after he
signed it; that after he signed the will he went to the room where Tomasa was lying; that the will was left on
the table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he
was (the witness) had signed it; that he saw Paez sign the will, that he could not remember whether Anselmo
Zacarias had signed the will, because immediately after he and Paez signed it, he left because he was hungry;
that the place where the table was located was in the same house, on the floor, about two steps down from the
floor on which Tomasa was.

Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap
Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he
was a physician; that he knew Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that
he visited her first on the 8th day of August; that he visited her again on the 9th and 10th days of August; that
on the first visit he found the sick woman completely weak very weak from her sickness, in the third stage
of tuberculosis; that she was lying in bed; that on the first visit he found her with but little sense, the second
day also, and on the third day she had lost all her intelligence; that she died on the 11th of August; tat he was
requested to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or
anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed,
by the stage of uraemia from which she was suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the
rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was
dead; that he had written the will exhibit A; that it was all in his writing except the last part, which was written
by Carlos Sobaco; that he had written the will Exhibit A at the request of the uncle of Tomasa; that Lorenzo,
the brother of the deceased, was the one who had instructed him as to the terms of the will ; that the deceased
had not spoken to him concerning the terms of the will; that the will was written in the dining room of the
residence of the deceased; that Tomasa was in another room different from that in which the will was written;
that the will was not written in the presence of Tomasa; that he signed the will as a witness in the room where
Tomasa was lying; that the other witnesses signed the will in the same room that when he went into the room
where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was
lying stretched out on the bed and two women, who were taking care of her, helped her to sit up, supporting
her by lacing their hands at her back; that when she started to write her name, he withdrew from the bed on
account of the best inside the room; when he came back again to the sick bed the will was signed and was
again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room;
that he did not know whether Tomasa had been informed of the contents of the will or not; he supposed she
must have read it because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he
did not know what she said he could not hear her voice; that he did not know whether the sick woman was
him sign the will or not; that he believed that Tomasa died the next day after the will had been signed; that the
other two witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman;
that he saw them sign the will and that they saw him sign it; that he was not sure whether the testatrix could
have seen them at the time they signed the will or not; that there was a screen before the bed; that he did not
think that Lorenzo had been giving instructions as to the contents of the will; that about ten or fifteen minutes
elapsed from the time Lorenzo handed the will to Tomasa before she started to sign it; that the pen with which
she signed the will as given to her and she held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she
was dead; that she had made two wills; that the first one was written by La O and the second by Zacarias; that
he was present at the time Zacarias wrote the second one; that he was present when the second will was taken
to Tomasa for signature; that Lorenzo had told Tomasa that the second will was exactly like the first; that
Tomasa said she could not sign it.

On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez
and Tabora were there; that he had told Tomasa that the second will was exactly like the first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing
in their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she knew
Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during the last week of
her illness; that Tomasa had made two wills; that she was present when the second one was executed; that a
lawyer had drawn the will in the dining room and after it had been drawn and everything finished , it was
taken to where Doa Tomasa was, for her signature; that it was taken to her by Anselmo Zacarias; that she
was present at the time Tomasa signed the will that there were many other people present also; that she did not
see Timoteo Paez there; that she saw Severo Tabora; that Anselmo Zacarias was present; that she did not hear
Clotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will
was the same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold of the pen
and try to sign it but she did not see the place she signed the document, for the reason that she left the room;
that she saw Tomasa sign the document but did not see on what place on the document she signed; and that a
notary public came the next morning; that Tomasa was able to move about in the bed; that she had seen
Tomasa in the act of starting to write her signature when she told her to get her some water.

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong
and knew that she had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it
on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to
Tomasa to sign; that he saw the witnesses sign the will on a table near the bed; that the table was outside the
curtain or screen and near the entrance to the room where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that
Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa
had said that she sign the will; that the will was on a table near the bed of Tomasa; that Tomasa, from where
she was lying in the bed, could seethe table where the witnesses had signed the will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to
quote from them for the reason that their testimony in no way affects the preponderance of proof above
quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the
conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to the record
and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap Caong and admitted it
to probate and ordered that the administrator therefore appointed should continue as such administrator. From
that order the protestants appealed to this court, and made the following assignments of error:

I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap
Caong, without the intervention of any external influence on the part of other persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at
the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will,
Exhibit 1, is identical with that which appears in the second will, Exhibit A.

IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa
Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower court found that
no undue influence had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true
that some of the witnesses testified that the brother of Tomasa, one Lorenzo, had attempted to unduly
influence her mind in the execution of he will, upon the other hand, there were several witnesses who testified
that Lorenzo did not attempt, at the time of the execution of the will, to influence her mind in any way. The
lower court having had an opportunity to see, to hear, and to note the witnesses during their examination
reached the conclusion that a preponderance of the evidence showed that no undue influence had been used.
we find no good reason in the record for reversing his conclusions upon that question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound
mind and memory at the time of the execution of the will, we find the same conflict in the declarations of the
witnesses which we found with reference to the undue influence. While the testimony of Dr. Papa is very
strong relating to the mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related
to a time perhaps twenty-four hours before the execution of the will in question (Exhibit A). Several witnesses
testified that at the time the will was presented to her for her signature, she was of sound mind and memory
and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it.
The lower court found that there was a preponderance of evidence sustaining the conclusion that Tomasa
Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the time she
signed this will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we
do not feel justified in reversing his conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court committed an error in declaring
that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with
that which appears in the second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was
not the question presented to the court. The question presented was whether or not she had duly executed the
will of August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6,
1909. Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no
proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in
accordance with the provisions of law, up to the very last of moment her life. She had a perfect right to
change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact
that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make
the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa
Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in her second will
(Exhibit A)" the inference that she had not signed the second will and all the argument of the appellants
relating to said third assignment of error is based upon the alleged fact that Tomasa Elizaga Yap Caong did
not sign Exhibit A. Several witnesses testified that they saw her write the name "Tomasa." One of the
witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our
conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to
sign the same, that the will amount to a signature. It has been held time and time again that one who makes a
will may sign the same by using a mark, the name having been written by others. If writing a mark simply
upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the
writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the
will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94
Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited by the
appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very suddenly on the
17th of October, 1888, at the residence of her father. After her death a paper was found in her room, wholly in
her handwriting, written with a lead pencil, upon three sides of an ordinary folded sheet of note paper and
bearing the signature simply of "Harriett." In this paper the deceased attempted to make certain disposition of
her property. The will was presented for probate. The probation was opposed upon the ground that the same
did not contain the signature of the deceased. That was the only question presented to the court, whether the
signature, in the form above indicated, was a sufficient signature to constitute said paper the last will and
testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either in England
or the United States; but the principle on which the decisions already referred to were based, especially
those in regard to signing by initials only, are equally applicable to the present case, and additional
force is given to them by the decisions as to what constitutes a binding signature to a contract. (Palmer
vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon
Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to
"sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient, under the
law requiring a signature by the person making a will, to make his mark, to place his initials or all or any part
of his name thereon. In the present case we think the proof shows, by a large preponderance, that Tomasa
Elizaga Yap Caong, if she did not sign her full name, did at least sign her given name "Tomasa," and that is
sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the argument which was preceded is
sufficient to answer it also.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did
not sign her name in the presence of the witnesses and that they did not sign their names in their presence nor
in the presence of each other. Upon that question there is considerable conflict of proof. An effort was made to
show that the will was signed by the witnesses in one room and by Tomasa in another. A plan of the room or
rooms in which the will was signed was presented as proof and it was shown that there was but one room; that
one part of the room was one or two steps below the floor of the other; that the table on which the witnesses
signed the will was located upon the lower floor of the room. It was also shown that from the bed in which
Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the
rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the
witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet,
nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are
made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed
upon the will.

In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach
conclusions that are absolutely free from doubt. Great weight must be given by appellate courts who do not
see or hear the witnesses, to the conclusions of the trial courts who had that opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga
Yap Caong did execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated
August 11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is
hereby affirmed with costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21755 December 29, 1924

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.

Manuel M. Calleja for appellants.

Felix U. Calleja for appellee.

ROMUALDEZ, J.:

This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his surviving
spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece,
respectively, of the deceased.

The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and ordered the
probate thereof, holding that the document in controversy was the last will and testament of Antonio Mojal,
executed in accordance with law. From this judgment the opponents appeal, assigning error to the decree of
the court allowing the will to probate and overruling their opposition.

The will in question, Exhibit A, is composed of four sheets with written matter on only side of each, that is,
four pages written on four sheets. The four sides or pages containing written matter are paged "Pag. 1," "Pag.
2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or pages, which was issued, was signed by the
testator and the three witnesses on the margin, left side of the reader. On the third page actually used, the
signatures of the three witnesses appear also on the margin, left side of the reader, but the signature of the
testator is not on the margin, but about the middle of the page, at the end of the will and before the attestation
clause. On the fourth page, the signatures of the witnesses do not appear on the margin, but at the bottom of
the attestation clause, it being the signature of the testator that is on the margin, left side of the reader.

The defects attributed to the will are:

(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on the left
margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact that the attestation
clause does not state the number of sheets or pages actually used of the will; and (d) the fact that the testator
does not appear to have signed all the sheets in the presence of the three witnesses, and the latter to have
attested and signed all the sheets in the presence of the testator and of each other.

As to the signatures on the margin, it is true, as above stated, that the third page actually used was signed by
the testator, not on the left margin, as it was by the witnesses, but about the middle of the page and the end of
the will; and that the fourth page was signed by the witnesses, not on the left margin, as it was by the testator,
but about the middle of the page and at the end of the attestation clause.

In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), is
applicable, wherein the will in question was signed by the testator and the witnesses, not on the left, but right,
margin. The rule laid down in that case is that the document contained the necessary signatures on each page,
whereby each page of the will was authenticated and safeguarded against any possible alteration. In that case,
the validity of the will was sustained, and consequently it was allowed to probate.

Applying that doctrine to the instant case, we hold that, as each and every page used of the will bears the
signatures of the testator and the witnesses, the fact that said signatures do not all appear on the left margin of
each page does not detract from the validity of the will.lawphi1.net

Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not paged with
letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held that paging with
Arabic numerals and not with letters, as in the case before us, is within the spirit of the law and is just as valid
as paging with letters.

As to the proposition that the attestation clause does not state the number of sheets or pages of the will, which
is the third defect assigned, it must be noted that the last paragraph of the will here in question and the
attestation clause, coming next to it, are of the following tenor:

In witness whereof, I set my hand unto this will here in the town of Camalig,
Albay, Philippine Islands, this 26th day of November, nineteen hundred and
eighteen, composed of four sheets, including the next:
ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will and
testament in the presence of each of us, and at the request of said testator Don
Antonio Mojal, we signed this will in the presence of each other and of the
 testator.)
PEDRO CARO
SILVERIO
MORCO
ZOILO MASINAS

As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the case of Uy
Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must state the number of sheets
or pages composing the will; but when, as in the case before us, such fact, while it is not stated in the
attestation clause, appears at the end of the will proper, so that no proof aliunde is necessary of the number of
the sheets of the will, then there can be no doubt that it complies with the intention of the law that the number
of sheets of which the will is composed be shown by the document itself, to prevent the number of the sheets
of the will from being unduly increased or decreased.

With regard to the last defect pointed out, namely, that the testator does not appear to have signed on all the
sheets of the will in the presence of the three witnesses, and the latter to have attested and signed on all the
sheets in the presence of the testator and of each other, it must be noted that in the attestation clause above set
out it is said that the testator signed the will "in the presence of each of the witnesses" and the latter signed "in
the presence of each other and of the testator." So that, as to whether the testator and the attesting witnesses
saw each other sign the will, such a requirement was clearly and sufficiently complied with. What is not stated
in this clause is whether the testator and the witnesses signed all the sheets of the will.

The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot be
proven by the mere exhibition of the will unless it is stated in the document. And this fact is expressly stated in
the attestation clause now before us. But the fact of the testator and the witnesses having signed all the sheets
of the will may be proven by the mere examination of the document, although it does not say anything about
this, and if that is the fact, as it is in the instant case, the danger of fraud in this respect, which is what the law
tries to avoid, does not exist.

Therefore, as in the instant case the fact that the testator and the witnesses signed each and every page of the
will is proven by the mere examination of the signatures in the will, the omission to expressly state such
evident fact does not invalidate the will nor prevent its probate.

The order appealed from is affirmed with the costs against the appellants. So ordered.

Johnson, Malcolm, and Villamor, JJ., concur.

Separate Opinions

AVANCEA, J., dissenting:

In my opinion the judgment appealed from must be reversed, and the probate of the will denied on the ground
that the number of sheets or pages composing the will is not stated in the attestation clause.
The attestation clause is necessary and essential for the validity of the will (In re Estate of Neumark, 46 Phil.,
841). The law requires that the attestation clause should state the number of sheets or pages of the will and In
re Will of Andrada (42 Phil., 180) it was held that a document said to be the will of a deceased person cannot
be probate when the attestation clause does not state the number of sheets or pages composing the will. The
fact that in the will proper the number of pages composing it is stated, does not cure the defect of it not having
been stated in the attestation clause. The intention of the law in providing that it should be stated necessarily in
the attestation clause is undoubtedly that the attesting witnesses and not the testator should certify this fact. As
held in the case of Abangan vs. Abangan (40 Phil., 476), the attestation clause pertains to the attesting
witnesses and it is not necessary that the testator should also sign it. On the other hand the will proper pertains
to the testator, and not to the attesting witnesses and it is not necessary also that the latter should sign it (In
re Will of Tan Diuco, 45 Phil., 807), as in fact they did not sign it in the instant case. Therefore, the statement
of the number of sheets or pages of the will in the will proper is not a compliance with the law, for in that way
it is only the testator who states the fact and not the attesting witnesses, as required by the law.

OSTRAND, J., dissenting:

I concur in the dissenting opinion of Mr. Justice Avancea. The majority opinion is directly contrary to the
decisions of this court in the cases of In re Will of Andrada (42 Phil., 180) and Uy Coque vs. Navas L.
Sioca (43 Phil., 405) and violates the well-known rule that statutes prescribing the formalities to be observed
in the execution of wills must be strictly construed. And this is done in the face of the fact that the attestation
clause in the will before us evidently is drawn in accordance with the original text of section 618 of the Code
of Civil Procedure which the Legislature, by Act No. 2645, found it necessary to amend and strengthen by
adding precisely the requirements which the court now virtually declares non-essential.

STREET, J., concurs in the dissenting opinions of Justice Avancea, and Ostrand.

G.R. No. L-47931 June 27, 1941

Rev. P. Testamentary the late Eleuterio Pilapil. ADRIANO MENDOZA, applicant and respondent,

vs.

CALIXTO Pilapil AND OTHERS opponents and appellants.

Filemon Sotto D. and D. G. Estenzo Numeriano representing the appellants.

Messrs. Alonso and Alonso for appellee.

DIAZ, J .:
The main issues that opponents present us for resolution, to appeal the decision of the Court of First Instance
of Cebu, issued in the record of testamentary No. 407 of the Court, may be reduced to following the vessel.

1st Cebu If the court could appoint the March 4, 1939, the appellee as special administrator of estate of the
decedent relict P. Eleuterio Pilapil (testamentary record No. 407), being as it was then acting as administrator
of the same goods from the February 7, 1939, the appellant Calixto Pilapil, who promoted the day before, the
same record Intestate decedent P. Eleuterio Pilapil, in this Court (file No. 399, Court of Cebu); Y

2nd If proceeded and proceeds legalization as a will or living will of the late P. Eleuterio Pilapil, the car
obrante document as Exhibit A that is a duplicate of the coal Exhibit C.

The relevant facts must be taken into account in resolving the issues proposed are, as reflected by the appealed
decision and the same documents as the Court declare to be last will and testament of the late P. Eleuterio
Pilapil, those below are related :

Father Eleuterio Pilapil, being priest of the parish of Mualboal of the Province of Cebu, died in the city of that
name on 6 December 1935. absence of any submitted his will after his death, at least until early February
1939, his brother Calixto Pilapil promoted the 6th of such month and year, the record of intestacy No. 399 to
ask fuesenombrado manager of the relict goods. Received test the request submitted to elindicado end prior
publication of notices presritos by law, and hearing the court prior to the quecomparecieron to oppose it,
among which were the same appeal and Simeona Pilapil, the Court He granted it, immediately afterwards
naming him administrator of the Intestate. Within a few days, or the March 4, 1939, the respondent promoted
in turn file No. 407 previously has been mentioned, to call for the legalization as a testament of the late P.
Eleuterio Pilapil, of Exhibit A that is doubled to carbon Exhibit C. There are between the clauses of these two
documents, which are then inserted by its relevance to the issues raised and also the importance

I, Eleuterio Pilapil, Priest of natural Roman Catholic Church, sixty-eight years old, of Liloan, currently pastor
of the Parish of Mualboal, Province of Cebu, IF, enjoying health and being of sound mental faculties, hereby,
publish, declare and grant the following as MY LAST WILL aND TESTAMENT:

ART. FIRST: I institute and appointed Mr. Adrian Mendoza, my nephew, married, of legal age and resident of
the Municipality of Liloan, Cebu Province, IF, EXECUTOR-executor of this my last will and testament:
Provided, That in case of impossibility, negligence or other cause with that embarrasses enforce this my last
will and testament, through bail, dispose and ordered it to be replaced in the position of executor-executor of
this my last will and testament, by my cousin, Jose Cabatingan, married, of legal age, resident Municipiop of
Mualboal, Cebu Province, IF, who is responsible and will make these my following provisions are met:
xxxxxxxxx

2nd do I have and command this my Last Will and Testament not be heard by the Court, since this last will
and testament, simply corroborates claims and ensures the legitimacy of the documents for the sale of my
property;

xxxxxxxxx

ART. SECOND: Hereby, I note that this My Last Will and Testament, which corroborates claims and ensures
the legitimacy of documents by my granted to buyers consists of two articles; It contains sixteen provisions
and is written on three pages;

xxxxxxxxx

Cebu, Cebu, I.F., nowadays November 27, 1935.

(Signed) ELEUTERIO Pilapil

Testator;

at the end thereof (exhibits A and C), there is this clause Witnessing:

When shall read:

HEALTH,

We who have signed below, we state: That the pre-insert Last Will and Testament, has been signed, and jury
declared by the testator, Rev. P. Eleuterio Pilapil in the presence of all of us and beg of the testator, we signed
each of us in the presence of us, here in Cebu, Cebu, IF, nowadays November 27, 1935.
(Signed) WENCESLAO Pilapil

Witness

MARCELO Pilapil

Witness

EUGENE K. Pilapil

Witness

The two documents, exhibits A and C, consist of three pages; and on the left of each of the first two margin;
firms that are at the end of the main body of these documents and their attestation clause appear; and they are,
according to the evidence, signatures of the late P. Eleuterio Pilapil, and witnesses Pilapil Wenceslas, Marcelo
Pilapil and Eugene K. Pilapil.

In place of the date both of the two documents and their attestation clause, is written the word "Cebu" about
which try to scrape but may even be that said "Mualboal"; and also shows the numeral "27" and the name of
more "November", written the latter on a scraped word that can even be too without any difficulty, at least in
Exhibit A, which says: "October". In the last paragraph on page 2 which appears below in the first two lines of
the next page (page 3), which is the last, there is the following explicit reference: "contains sixteen provisions
and is written on three pages." At the bottom of the pages (1) and (2) there is respectively these notes: "Go to
page 2."; "Go to page 3.". And it should be noted that both the one and the other of the aforementioned
Exhibits A and C, no more than two articles ( "Art. First" and "Art. Second"), and dieceseis provisions.

The reasons for Appellants rely to argue that legalization is not appropriate for any of the two documents
expressed as a testament of the late P. Eleuterio Pilapil, are these:

(A) They contain erasures and alterations that explain the respondent stopped;

(B) That has not been proven that the decedent - prescindimiento of what is stated in those documents exhibits
A and C - age was competent to test;
(C) That has not proved that the deceased possessed the Spanish is the language in which these documents are
written;

(D) in one of the clauses of these documents is no prohibition that aired in slab Courts;

(E) That neither has been prepared, signed and witnessed in accordance with the provisions of Article 618 of
the Code of Civil Procedure.

With regard to the first question, it must be said that, according to tells us the same piece of Appeal of the
appellants, both Nos. 399 and 407 records were promoted in two different Chambers of the Court of First
Instance of Cebu. The first was promoted in Room III; and the last, in Room II. Upon hearing the Judge of one
of those boards that there was a direct relationship between daub and another, provided that the two were
known by a single judge; hence both are considered as one to avoid what the judge said said, "inconsistency in
the administration of the property of the deceased," referring to; P. Eleuterio late Pilapil.

Certainly did not lack reason to Cebu court to appoint special administrator in file No. 407, the appellee,
because there are documents sought to legalize as a testament and living will of the late P. Eleuterio Pilapil,
has commissioned express it to be. In addition, there was not no law that prohibits the courts hearing a record
of testamentary or intestate, appoint more than one administrator; and, if I happened is that annulled the
appointment of the appellant as an administrator, then the two mentioned records were melted. But still; If the
purpose of the appellants in proposing the question of which we are speaking, is nullifying the appointment
issued to appellee as special administrator, is vain and futile must be said purpose, because insisting on the
amounts to be appealing to a court order appointing a special administrator; and the law does not allow for
appeal against orders of this nature. It is final disposition of the law that says, "Do not allow appeal against the
appointment of the special manager." (Art. 660, Law No. 190.)

In addition to all this must be said that if there was an error in the appointment of the respondent as special
administrator, for the reason that other property was already appointed by the court, the error, if such it can be
called, has not been such nature that has caused any harm to anyone, least of late Probate P. Eleuterio Pilapil.

Scratches and changes that are noted in Exhibits A and C are some facts that now, for the first time, and in this
instance, want llamr attention, when it should have been done while the case was still in court of its origin. We
can not take them into account in the present state of the proceedings because, assuming that already existed
then, can and should be, though not the Court of Cebu, I believe that these documents did not vitiate said in
express terms; it is rebuttable presumption that "all facts concerning the points discussed at trial were exposed
to and appreciated by the court." (Art. 334, par. 16, Law No. 190.) And indeed vitiated not because it follows
from the same circumstances, they did just to put things in their proper place. The two exhibits A and C were
prepared by the late P. Eleuterio Pilapil in Mualboal where he was parish priest before being transladado to be
treated for his illness that caused his death, the Southern Islands Hospital of Cebu, where he died. Being based
the Court on these facts proved at trial, I stated the following: "The intervention of the three attesting
witnesses of the document took place in a haphazard way, on the occasion in which they were to visit
Eleuterio Pilapil who was ill at the Southern Islands Hospital, where the decedent today begged them to act as
witnesses of the document and had then prepared ".

To prepare the, being in Mualboal, was no more than natural that expressed in it that there were prepared, and
leave blank the date but still put the name of the month they were placed in clean, ie October 1935.

As for the age of the testator and as to whether he spoke Spanish is the language in which they are written the
two exhibits, or not, it should be said that being a priest and parish priest of Mualboal, Cebu, must be
presumed fundademente who had age competent to test, and understood and spoken the Spanish, then, is
generally known that to be a parish priest, one must be a priest, and to be, many years of study in seminaries
where Spanish is spoken it is necessary a language as official as English. Moreover, no evidence has been
proved that the testator did not understand that language.

The disposition of the testator that his "Last Will and Testament not be heard by the court" can not strip the
courts of their authority to determine whether your will is referred legalizable or not. They are stakeholders in
one way or another on an issue, which can confer or remove jurisdiction and authority to Trubunales to
resolve and decide what it wants law to be resolved and decided. It should be noted that the law mandates
under penalty, to be delivered to the court the Wills made by a testator, then this die by the person to whom
custody has been entrusted, so certainly that can determine whether your legalization and at the same time to
dispose of their property as mandated therein; or if the contract must be declared died intestate, not be subject
to legalization which has been granted. (. 626 631 Arts, Law No. 190.) Furthermore, the testator not being a
lawyer, it is not surprising that has been entered in his will the ban that - using his own words - "it is aired in
court" .

And as to the exhibits A and C can not be legalized because they were not prepared or were signed in
accordance with the law, saying that their pages are not numbered with letters; and because in its clause
Witnessing is not expressed that they were signed by the three attesting witnesses, in the presence of the
testator, suffice to call attention to the fact that the bottom of the first page is in letters note that says clearly: "
Go to the 2nd page "; and the fact that, at the bottom of the second page, there is this other note: "Go to the 3rd
page"; and suffice also draw attention to the first two lines of said third page is the last, where, to complete the
provision that is contained in the last paragraph of the previous page, or second, it is stated:
. . . It consists of two articles; contien

Sixteen provisions and is written

three pages,

which agrees faithfully with the true facts as they appear in the aforementioned two exhibits, because actually
contain two articles and sixteen provisions, not more, not less.

Witnessing the clause in one and another copy of the subject matter Testament, by the three attesting witnesses
who signed states that

pre-insert the Last Will and Testament,

She has been signed, declared and sworn by

The testator, Rev. P. Eleuterio Pilapil

in the presence of all of us;

And immediately afterwards, it is also stated by the same witnesses that:

to beg of the testator, we signed

each of us, here in Cebu, Cebu,

I.F., nowadays November 27, 1935.

The fraze "to beg of the testator", coupled with that signed and signed his will in the presence of attesting
witnesses, permits and justifies the inference that the testator was present when the last there affixed their
respective signatures.

The purpose of the law to establish the formalities authenticity required, is undoubtedly ensure and guarantee
their authenticity against bad faith and fraud, to prevent those who have no right to succeed the testator will
happen and win-win with the legalization of same. Has fulfilled that purpose in the case that has been talked
about because, in the same body of the will and in the same page where the clause Witnessing appears, that is
the third, expresses the will consists of three pages and that each one of the first two leads in part the note in
letters, and partly and second pages of it. These facts clearly excluded all fear, suspicion, or any hint of doubt
that has replaced some of its pages with another.

Something more than in the case of Nayve against Mojal and Aguilar (47 Phil. Rep., 160), which was clarified
by the cause of Gumban against Gorecho and other (50 Phil. Rep., 31), there is in this case because there there
was but notes: "Pag. 1"; "Page 2."; "Page 3."; and "Pag. 4" on the respective side of the four pages of which it
is composed, and present no data already mentioned and there is also the record inserted into the first two lines
of the third page of the exhibits A and C, that they are composed of three pages, and contain two sixteen
articles and provisions.

They are therefore perfect application to the case that is what we said in the causes of Rodriguez against Yap,
R. G. No. 45924, May 18, 1939; and Fortunate against De Gorostiza (57 Phil. Rep., 456). We said in these
causes, respectively, the following:

The wording of the clause Witnessing this will not technically free repairs, but is essentially a law
enforcement.

We maintain the view that should be required strict compliance with the substantive requirements of the will,
to ensure its authenticity, but at the same time we believe that they should not be considered defects that can
not affect this end and, on the other part , be taken into account, could thwart the will of the testator.
(Rodriguez against Yap, supra.)

It should not be allowed to legal formalities hinder the use of good common sense in considering wills and
frustrate the wishes of the deceased solemnly expressed in their wills, regarding the granting of which there is
not even the shadow of bad faith or fraud. (Fortunate against De Gorostiza, supra.)

For these reasons, finding appealed according to law the decision of the Court of First Instance of Cebu,
hereby confirm it, condemned the appellants to pay the costs. So it is ordered.

Avancea, Pres., Diaz, Laurel, and Horrilleno Moran, JJ., Concur.

Separate Opinions

MORAN, M., dissenting:

The attestation clause is as follows:

We who have signed below, we state: That the pre-insert Last Will and Testament, has been signed, and jury
declared by the testator, Rev. P. Eleuterio Pilapil in the presence of all of us and beg of the testator, we signed
each of us in the presence of us, here in Cebu, Cebu, IF, nowadays November 27, 1935.

There is nothing in this clause that the attesting witnesses have signed the will in the presence of the testator
and, therefore, the will can not be legalized. But most it argues that "the phrase 'to beg of the testator,' attached
to that signed and signed his will in the presence of attesting witnesses, allowed and justified inference that the
testator was present when the last alli signed their respective firms." But, as we have said repeatedly that the
solemnities of a will required by law can not be proven by tests aliunde. Therefore, inference tests are
inadmissible inference mostly if not entirely set to logic.

For these reasons, I dissent from the majority opinion.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.

DECISION

CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals of 12 January 2001 in
CA-G.R. CV No. 47644. The Court of Appeals sustained the Resolution3 of the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and
testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime in September 1943.
Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros
Occidental (now RTC-Kabankalan) a petition,5 docketed as SP No. 070 (313-8668), for the probate of the last
will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his natural children
Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he died in
1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the
following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last
will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the
beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely,
Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi,
Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The
oppositors are the nephews, nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition6 before the RTC-Kabankalan, docketed as SP No. 071
(312-8669), for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi
Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition7 before the RTC-Kabankalan, docketed as SP No. 069
(309), praying for the issuance in his name of letters of administration of the intestate estate of Abada and
Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the
oppositors did not file any motion for reconsideration, the order allowing the probate of Torays will became
final and executory.8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble ("Caponong-
Noble") Special Administratrix of the estate of Abada and Toray.9 Caponong-Noble moved for the dismissal
of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 20
August 1991.10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order
dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision.
Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is substantial compliance with
the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of
Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada
dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is appointed administrator of the estate of Paula Toray who shall
discharge his duties as such after letters of administration shall have been issued in his favor and after taking
his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her
duties as such until further orders from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition
for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-
Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-
Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of
Abada.
Hence, the present recourse by Caponong-Noble.
 The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary public;13
3. Whether the will must expressly state that it is written in a language or dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause
complies with the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written
in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old
Civil Code, and Act No. 190 or the Code of Civil Procedure14 which governed the execution of wills before
the enactment of the New Civil Code.
The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of the
Code of Civil Procedure, as amended by Act No. 2645,15 governs the form of the attestation clause of Abadas
will.16 Section 618 of the Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding section,17 shall be valid to pass
any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known
by the testator and signed by him, 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 each other. 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, on the left margin, and said
pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall
state 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.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testators name written by some other person in
his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible witnesses in the presence of the
testator and of each other;
 (4) The testator or the person requested by him to write his name and the instrumental witnesses of the
will must sign each and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on the upper part of each
sheet;
(6) The attestation shall state 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 of the will, or caused some other person to
write his name, under his express direction, in the presence of three witnesses, and the witnesses
witnessed and signed the will and all pages of the will in the presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect
known to the testator. Further, she maintains that the will is not acknowledged before a notary public. She
cites in particular Articles 804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article 804 of the Old Civil
Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of
the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken
from Section 618 of the Code of Civil Procedure.20 Article 806 of the New Civil Code is taken from Article
685 of the Old Civil Code21 which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator,
or, should they not know him, he shall be identified by two witnesses who are acquainted with him and are
known to the notary and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure
themselves that the testator has, in their judgment, the legal capacity required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701,
are also required to know the testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code. Under the Code of Civil
Procedure, the intervention of a notary is not necessary in the execution of any will.23 Therefore, Abadas will
does not require acknowledgment before a notary public.1awphi1.nt
Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language.
She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of
Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the
issue on appeal. We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate
proceedings.24 In addition, the language used in the will is part of the requisites under Section 618 of the Code
of Civil Procedure and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is no statutory requirement to state in the
will itself that the testator knew the language or dialect used in the will.25 This is a matter that a party may
establish by proof aliunde.26 Caponong-Noble further argues that Alipio, in his testimony, has failed, among
others, to show that Abada knew or understood the contents of the will and the Spanish language used in the
will. However, Alipio testified that Abada used to gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the Spanish language.27 This sufficiently proves that
Abada speaks the Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause. The attestation clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada
una de las hojas del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el margen izquierdo de todas y cada una de las dos hojas
de que esta compuesto el mismo, las cuales estan paginadas correlativamente con las letras "UNO" y "DOS
en la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that
the attestation clause fails to state the number of pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas de que
esta compuesto el mismo" which means "in the left margin of each and every one of the two pages consisting
of the same" shows that the will consists of two pages. The pages are numbered correlatively with the letters
"ONE" and "TWO" as can be gleaned from the phrase "las cuales estan paginadas correlativamente con las
letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the
will and its every page in the presence of three witnesses. She then faults the Court of Appeals for applying to
the present case the rule on substantial compliance found in Article 809 of the New Civil Code.29
The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio Abada como su
ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra
presencia en el margen izquierdo de todas y cada una de las hojas del mismo." The English translation is:
"Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the
testator having also signed it in our presence on the left margin of each and every one of the pages of the
same." The attestation clause clearly states that Abada signed the will and its every page in the presence of the
witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of
witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial
compliance in determining the number of witnesses. While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code.
In Dichoso de Ticson v. De Gorostiza,30 the Court recognized that there are two divergent tendencies in the
law on wills, one being based on strict construction and the other on liberal construction. In Dichoso, the
Court noted that Abangan v. Abangan,31 the basic case on the liberal construction, is cited with approval in
later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal construction of applicable laws,
enumerated a long line of cases to support her argument while the respondent, contending that the rule on
strict construction should apply, also cited a long series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to
all cases. 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 will, 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. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending
the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other
casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose of the law. x x x 331a\^/phi1.net
We rule to apply the liberal construction in the probate of Abadas will. Abadas will clearly shows four
signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses
to the will. The question on the number of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on
liberal construction, thus:
[T]he so-called liberal rule 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.l^vvphi1.net They only permit a probe into the will, an
exploration within 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.34 (Emphasis supplied)
The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will
itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the
three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each
page of the will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the
witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This
Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a
parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills what the law expects of it.35
The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo firmamos en
presencia de nosotros y del testador." In English, this means "in its witness, every one of us also signed in our
presence and of the testator." This clearly shows that the attesting witnesses witnessed the signing of the will
of the testator, and that each witness signed the will in the presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No.
47644.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

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. 15hence 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 the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that saidwitnesses 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. Reyes34 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,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios,
et al.,41and 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, 46and 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 above-mentioned, 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 shall state 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 Toray52 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,55Sebastian 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 of Rodriguez 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.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

________________________________________________________________________________________

epublic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

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

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

Luciano A. Joson for petitioner-appellant.

Cesar 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.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

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 petition3 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.
1wp hi1.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 Pabayo-Gomez 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,31 ruling 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.
Davide, Jr., C
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

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 the characterof 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.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

_______________________________________________________________________________________

(NAZARENO V CA 343 SCRA 637)

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 75005-06 February 15, 1990

JOSE RIVERA petitioner,

vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO J. RIVERA, respondents.

Lorenzo O. Navarro, Jr. for petitioner.

Regalado P. Morales for private respondent.

CRUZ, J.:

Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two?

On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On July 28, 1975,
Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a petition for the issuance of
letters of administration over Venancio's estate. Docketed as SP No. 1076, this petition was opposed by Adelaido
J. Rivera, who denied that Jose was the son of the decedent. Adelaido averred that Venancio was his father and
did not die intestate but in fact left two holographic wills.1

On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of Angeles City, a petition for the
probate of the holographic wills. Docketed as SP No. 1091, this petition was in turn opposed by Jose Rivera, who
reiterated that he was the sole heir of Venancio's intestate estate. 2

On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later appointed special
administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the son of the decedent but
of a different Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate was in question
was married to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no claim to
this estate because the decedent was not his father. The holographic wills were also admitted to probate. 3

On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate Court. 4 Its decision is
now the subject of this petition, which urges the reversal of the respondent court.

In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought to show that the said
person was married in 1928 to Maria Vital, who was his mother. He submitted for this purpose Exhibit A, the
marriage certificate of the couple, and Exhibit B, his own baptismal certificate where the couple was indicated as
his parents. The petitioner also presented Domingo Santos, who testified that Jose was indeed the son of the
couple and that he saw Venancio and Jose together several times. 5 Jose himself stressed that Adelaido
considered him a half-brother and kissed his hand as a sign of respect whenever they met. He insisted that
Adelaido and his brothers and sisters were illegitimate children, sired by Venancio with Maria Jocson. 6

Adelaido, for his part, maintained that he and his brothers and sisters were born to Venancio Rivera and Maria
Jocson, who were legally married and lived as such for many years. He explained that he could not present his
parents' marriage certificate because the record of marriages for 1942 in Mabalacat were destroyed when the town
was burned during the war, as certified by Exhibit 6. 7 He also submitted his own birth certificate and those of his
sisters Zenaida and Yolanda Rivera, who were each described therein as the legimitate children of Venancio
Rivera and Maria Jocson. 8 Atty. Regalado P. Morales, then 71 years of age, affirmed that he knew the deceased
and his parents, Magno Rivera and Gertrudes de los Reyes, and it was during the Japanese occupation that
Venancio introduced to him Maria Jocson as his wife. 9 To prove that there were in fact two persons by the same
name of Venancio Rivera, Adelaido offered Venancio Rivera's baptismal certificate showing that his parents were
Magno Rivera and Gertrudes de los Reyes, 10 as contrasted with the marriage certificate submitted by Jose, which
indicated that the Venancio Rivera subject thereof was the son of Florencio Rivera and Estrudez Reyes. 11 He also
denied kissing Jose's hand or recognizing him as a brother. 12

We find in favor of Adelaido J. Rivera.

It is true that Adelaido could not present his parents' marriage certificate because, as he explained it, the marriage
records for 1942 in the Mabalacat civil registry were burned during the war. Even so, he could still rely on the
presumption of marriage, since it is not denied that Venancio Rivera and Maria Jocson lived together as husband
and wife for many years, begetting seven children in all during that time.

According to Article 220 of the Civil Code:

In case of doubt, all presumptions favor the solidarity of the family. Thus every intendment of the
law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds, the
legitimacy of children, ... .

The Rules of Court, in Rule 131, provides:

SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted,

but may be contradicted and overcome by other evidence:
 xxx xxx xxx

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage.

By contrast, although Jose did present his parents' marriage certificate, Venancio was described therein as the
son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described in Exhibit 4, his baptismal
certificate, as the son of Magno Rivera. While we realize that such baptismal certificate is not conclusive evidence
of Venancio's filiation (which is not the issue here) it may nonetheless be considered to determine his real identity.
Jose insists that Magno and Florencio are one and the same person, arguing that it is not uncommon for a person
to be called by different names. The Court is not convinced. There is no evidence that Venancio's father was
called either Magno or Florencio. What is more likely is that two or more persons may live at the same time and
bear the same name, even in the same community. That is what the courts below found in the cases at bar.

What this Court considers particularly intriguing is why, if it is true that he was the legitimate son of Venancio
Rivera, Jose did not assert his right as such when his father was still alive. By his own account, Jose supported
himself and presumably also his mother Maria Vital as a gasoline attendant and driver for many years. All
the time, his father was residing in the same town and obviously prospering and available for support. His
alleged father was openly living with another woman and raising another family, but this was apparently accepted
by Jose without protest, taking no step whatsoever to invoke his status. If, as he insists, he and Venancio Rivera
were on cordial terms, there is no reason why the father did not help the son and instead left Jose to fend for
himself as a humble worker while his other children by Maria Jocson enjoyed a comfortable life. Such paternal
discrimination is difficult to understand, especially if it is considered assuming the claims to be true that Jose
was the oldest and, by his own account, the only legitimate child of Venancio Rivera.

And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's legitimate wife if
indeed she was she should have objected when her husband abandoned her and founded another family by
another woman, and in the same town at that. Seeing that the children of Maria Jocson were being raised well
while her own son Jose was practically ignored and neglected, she nevertheless did not demand for him at least
support, if not better treatment, from his legitimate father. It is unnatural for a lawful wife to say nothing if she is
deserted in favor of another woman and for a caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded support from her wealthy if errant husband.
She did not file a complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and complaisant.

Significantly, as noted by the respondent court, Maria Vital was not even presented at the trial to support her son's
allegations that she was the decedent's lawful wife. Jose says this was not done because she was already old and
bedridden then. But there was no impediment to the taking of her deposition in her own house. No effort was made
toward this end although her testimony was vital to the petitioner's cause. Jose dismisses such testimony as
merely "cumulative," but this Court does not agree. Having alleged that Maria Jocson's marriage to Venancio
Rivera was null and void, Jose had the burden of proving that serious allegation.

We find from the evidence of record that the respondent court did not err in holding that the Venancio Rivera who
married Maria Jocson in 1942 was not the same person who married Maria Vital, Jose's legitimate mother, in
1928. Jose belonged to a humbler family which had no relation whatsoever with the family of Venancio Rivera and
Maria Vital. This was more prosperous and prominent. Except for the curious Identity of names of the head of
each, there is no evidence linking the two families or showing that the deceased Venancio Rivera was the head of
both.

Now for the holographic wills. The respondent court considered them valid because it found them to have been
written, dated and signed by the testator himself in accordance with Article 810 of the Civil Code. It also held there
was no necessity of presenting the three witnesses required under Article 811 because the authenticity of the wills
had not been questioned.

The existence and therefore also the authenticity of the holographic wills were questioned by Jose Rivera. In his
own petition in SP No. 1076, he declared that Venancio Rivera died intestate; and in SP No. 1091, he denied the
existence of the holographic wills presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera
opposed the holographic wills submitted by Adelaido Rivera and claimed that they were spurious. Consequently, it
may be argued, the respondent court should have applied Article 811 of the Civil Code, providing as follows:

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.

The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the deceased
Venancio Rivera whose estate is in question. Hence, being a mere stranger, he had no personality to contest the
wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of
Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written and signed by their father,
was sufficient.

WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the
petitioner.

SO ORDERED.

Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

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. P-1652 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:

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. It is worthy of
1w phi 1

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.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes

1
Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and Manuel C. Herrera

2
Article 810 provides: 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.

SECOND DIVISION

G.R. Nos. 140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary injunction and/or temporary
restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the
Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the
Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia
Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late
Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the RTC, and praying for the appointment of private
respondent Elisa D. SeangioSantos as special administrator and guardian ad litem of petitioner Dy Yieng
Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1)
Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general
power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the
estate of Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the
intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the
will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99
93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take
precedence over SP. Proc. No. 9890870 because testate proceedings take precedence and enjoy priority over
intestate proceedings.2

The document that petitioners refer to as Segundos holographic will is quoted, as follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng
maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang
paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita
ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni
Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at
kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at
hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the
Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at
anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No. 9993396 were
consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings5 primarily on the ground
that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate
of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo,
and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into
the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it
is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate
court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the
intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundos will does not constitute a universal
heir or heirs to the exclusion of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings:

A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that
there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted,
Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned,
Article 854 does not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion.
The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its
position clear: "for respondents to have tolerated the probate of the will and allowed the case to progress when,
on its face, the will appears to be intrinsically void would have been an exercise in futility. It would have meant a
waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was
resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit.
Special Proceedings No. 9993396 is hereby DISMISSED without pronouncement as to costs.

SO ORDERED.7

Petitioners motion for reconsideration was denied by the RTC in its order dated October 14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW
NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE
RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR
THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE
ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS
A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION
OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON
THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE
TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE
CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively
mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the
allowance thereof, and cause notice of such time and place to be published three weeks successively previous to
the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs,
legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly
states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no
preterition in the decedents will and the holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole
exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and
extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render
nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him
in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards
the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundos intention of excluding
his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will
wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were
stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate
as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the
testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to
make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or
descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a
holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.

Segundos document, although it may initially come across as a mere disinheritance instrument, conforms to the
formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself.
An intent to dispose mortis causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latters property, the disinheritance of Alfredo, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within
the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are
designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the
present case, should be construed more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of the testator.12 In this regard, the
Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a
holographic will. Unless the will is probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct line were not
preterited in the will. It was, in the Courts opinion, Segundos last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his
other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not
operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo. 1w phi 1

Considering that the questioned document is Segundos holographic will, and that the law favors testacy over
intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall
pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is
settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated
August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc.
No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No.
98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.

No costs.

SO ORDERED.

THIRD DIVISION

G.R. No. 169193 November 30, 2006

SPOUSES ILUMINADA CAPITLE and CIRILO CAPITLE, Petitioners,
vs.
FORTUNATA ELBAMBUENA and ROSALINDA C. OLAR, Respondents.

DECISION

CARPIO MORALES, J.:

The parcel of agricultural land subject of the present controversy contains 1.8144 hectares, identified as Lot 1849
(the lot), and situated in Barangay Valle, Talavera, Nueva Ecija.

A Certificate of Land Ownership Award (CLOA) was issued to Cristobal Olar (Olar) covering the lot on account of
which he was issued Transfer Certificate of Title No. CLOA-0-3514.

Respondents Fortunata Elbambuena (Fortunata) and Rosalinda Olar (Rosalinda), spouse and daughter-in-law,
respectively, of Olar, now deceased, claim that Olar relinquished one-half or 0.9072 hectare of the lot to Rosalinda
by a "Kasunduan"1 dated July 17, 1992 the execution of which was witnessed by petitioner Cirilo Capitle; and that
the remaining portion of the lot was surrendered to Fortunata by an undated document.2

Respondents, alleged that on petitioners request, petitioners were allowed to occupy the lot to pursue a means of
livelihood. Since 1990, however, petitioners did not pay rentals despite demand therefor, and neither did they heed
the demand to return the possession of the lot, drawing respondents to file a Petition for Recovery of Possession
and Payment of Back Rentals3 against petitioners before the Department of Agrarian Reform Adjudication Board
(DARAB) Regional Office in Talavera, Nueva Ecija, docketed as DARAB Case No. 5987NNE96.

Petitioners, on the other hand, claiming that they have been in possession of the lot since 1960, presented a
"Waiver of Rights"4 executed by Olar wherein he renounced in their favor his rights and participation over the lot; a
"Sinumpaang Salaysay"5 wherein Olar acknowledged that he co-possessed the lot with petitioner Capitle since
1960; and a Pinagsamang Patunay6 from the Barangay Agrarian Reform Committee (BARC) Chairman and
barangay chairman of Valle certifying that they (petitioners) are the actual tillers and possessors of the lot.

Petitioners further claim that since 1959, respondent Fortunata was already separated from Olar and she even
remarried, thus giving her no right to inherit from Olar.

While respondents petition in DARAB Case No. 5987'NNE'96 was pending before the Provincial Agrarian Reform
Adjudicator (PARAD), petitioners filed before the Municipal Agrarian Reform Officer (MARO) of Talavera, Nueva
Ecija a petition for cancellation of the CLOA issued to Olar, docketed as DARAB Case No. 6261'NNE'97, claiming
that they are the new farmer-beneficiaries as shown by, among other things, the "Waiver of Rights" executed by
Olar.

By Decision7 dated August 20, 1997 which jointly resolved DARAB Case Nos. 5987'NNE'96 and 6261NNE97, the
PARAD ruled in favor of petitioners, the decretal portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered: ORDERING AND DECLARING

1. DARAB Case No. 5987NNE96 DISMISSED for lack of merit;

2. The recall/cancellation of TCT No. CLOA-0-3514 previously issued to the late Cristobal Olar;

3. The PARO, DAR-North, Talavera, Nueva Ecija thru the Chief, Landed Estate Section to cause the
issuance of a new CLOA in the name of Iluminada Capitle married to Cirilo Capitle;

4. The Register of Deeds of Nueva Ecija to cancel TCT No. CLOA-0-3514 adverted to if the same is
already registered and cause the registration of a new CLOA in the name of Iluminada Capitle married to
C[i]rilo Capitle; and
 5. Other claims and counterclaims likewise DISMISSED for lack of legal basis.8

Respondents appealed the decision to the DARAB, arguing that the PARAD erred in holding that:

I.

. . . PETITIONERS FORTUNATA ELBAMBUENA AND ROSALINDA OLAR CAN NO LONGER RECOVER

POSSESSION OVER THE SUBJECT FARM LOT, MUCH LESS DEMAND PAYMENT OF LEASE
RENTALS FROM THE RESPONDENTS.

II.

. . . THE PETITION FOR RECALL/CANCELLATION OF TCT NO. CLOA-0-3514 PREVIOUSLY ISSUED

TO THE LATE CRISTOBAL OLAR WOULD PROSPER.9

By Decision10 of December 29, 2003, the DARAB set aside the PARADs decision, disposing as follows:

WHEREFORE, premises considered, the appealed decision is SET ASIDE and a new judgment is hereby
rendered:

1. Ordering Spouses Capitle and any or all persons acting in their behalf to immediately vacate the subject
landholding and deliver the same to Fortunata Elbambuena and Rosalinda C. Olar;

2. Ordering the issuance of CLOA in favor of Fortunata Elbambuena and Rosalinda C. Olar as legal heirs
of Cristobal Olar.

3. Setting aside the decision of the Adjudicator a quo in DARAB Regional Case No. 6261NNE97 for lack
of jurisdiction over the persons of the Heirs of Cristobal Olar;

4. The demand for back lease rentals by [respondents] is denied for lack of merit.11

Petitioners elevated the case to the Court of Appeals via petition for review, arguing that the DARAB erred:

1. IN CONCLUDING THAT THE POSSESSION OF LOT NO. 1849 since 1960 DESERVES NO MERIT
THERE BEING NO BASIS BOTH IN FACT AND IN LAW;

2. THAT THE PRESUMPTION, THE CLOA WAS ISSUED TO CRISTOBAL OLAR IN THE REGULAR
COURSE [OF] OFFICIAL FUNCTION WAS NEVER OVERCOME BY CONTRARY EVIDENCE;

3. THAT THE WAIVER EXECUTED BY CRISTOBAL OLAR IN FAVOR OF SPS. CAPITLE IS VOID FOR
BEING CONTRARY TO LAW AND PUBLIC POLICY;

4. IN CONCLUDING THAT THE TRANSFER ACTION CONDUCTED BY THE SAMAHANG NAYON OF

VALLE, TALAVERA, NUEVA ECIJA CONTAINS SUBSTANTIAL AND MATERIAL DEFECTS; [and]

5. IN CONCLUDING THAT THE CANCELLATION OF TCT No. CLOA-0-3514 DOES NOT BIND
FORTUNATA ELBAMBUENA AND ROSALINDA OLAR BECAUSE THEY WERE NOT MADE PARTY TO
DARAB CASE NO. 6261NNE97.12

By the challenged Decision of November 23, 2004,13 the appellate court affirmed in toto the DARAB decision,
ratiocinating as follows:

The DARAB correctly found that petitioners-appellants possession of the questioned property since 1960 is of
dubious legality. No amount of possession under whatever claim (actual tilling and actual possession) can clothe
petitioner-appellants with any lawful right over the questioned property. Reason: It can be gleaned from the factual
antecedents that petitioners-appellants stay in Cristobal Olars property was, or had been , by mere tolerance of
respondents-appellees. Indeed, so much is clear from the averments on page 5 of their petition: "xxx; that
Cristobal Olar beginning 1959 up to the time of his death in 1995 lived all alone by himself and his
companions in his house are the Spouses Iluminada and Cirilo Capitle xxx." These averments, being in the
nature of judicial admissions, are conclusive and binding on petitioners-appellants and can no longer be
controverted. This simply meant that no title of ownership as farmer beneficiary was passed unto the Capitles,
thereby rendering ineffective the certification issued by the MARO of Talavera, Nueva Ecija. Even the Board
Resolution of the Samahang Nayon of Valle, Talavera, Nueva Ecija, naming the Capitles as new allocatees of the
landholding, had no binding effect, as the said samahang nayon is not the proper authority under the law with
power to pass upon the legal issue as to who rightfully deserves to own Cristobal Olars landholding after him.
Besides which, there was nothing amiss with the DARABs ruling relative to the issuance of the Certificate of Land
Ownership Award to Cristobal Olar, as this was done in the regular course of an official function. It simply
established the fact that petitioners-appellants claim could in no way legally stand against Cristobal Olar, whose
title under the CLOA cannot be overthrown or supplanted by some organizational resolution and/or barangay
attestations/certifications. On the other hand, Cristobal Olars death substantially passed all his rights and interest
in and over the subject property to his legal heirs by operation of law. In the case at bench, to herein respondents-
appellees: to Fortunata Elbambuena, being his surviving wife, and to Rosalinda Olar, his sons surviving spouse,
acting for and in behalf of her children with Nemesio Olar. This is as it should, considering that rights to the
succession are transmitted from the moment of death of the decedent. And since Fortunata Elbambuena and
Rosalinda Olars relationship with Cristobal Olar was in this case never put in issue, their being legal heirs of the
deceased gave them unqualified right to participate in all proceedings affecting the subject property.

What is more, as shown in the records, the respondent in DARAB Case No. 6261NN[]97 was the MARO OF
TALAVERA, N.E. Private respondents-appellees were not impleaded therein. But as heirs of Cristobal Olar,
private respondents-appellees ought to have been so impleaded. The Rules mandate that the full names of all the
real parties in interest whether natural or juridical persons or entities authorized by law shall be stated in the
caption of the complaint or petition. Who is a "real party in interest"? He is that party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Tested by this criterion, Fortunata
Elbambuenas legitime and Rosalinda Olar stood to be "injured" by the glaringly erroneous decision of the PARAD,
Talavera, Nueva Ecija. Hence, that decision must be vacated, it having transgressed substantive rights protected
by law.14 (Emphasis and italics in the original; underscoring supplied)

Hence, the present petition which reiterates the above-enumerated errors petitioners proffered before the
appellate court.

Petitioners maintain that their possession since 1960 was satisfactorily established by evidence including Olars
"Waiver of Rights," Board Resolution of the Samahang Nayon of Valle naming petitioners as new allocatee, Joint
Certification of the BARC Chairman and barangay chairman, and MARO Certification that they have been in actual
possession of the lot.

Although the CLOA was issued to Olar, petitioners contend that their preferential right over the lot should be
recognized, they being the transferees pursuant to the "Waiver of Rights" and the actual tillers thereof.

Petitioners concede that although Olars death passed all his rights and interest over the lot to his legal heirs, his
intent of not bequeathing them to his estranged wife but to a relative, who helped him in tilling the lot and who took
care of him, should be accorded respect over the intent of the law on hereditary succession.

Finally, petitioners claim that respondents are not qualified to become farmer-beneficiaries under the CARP as
they did not till or cultivate the property nor help Olar in his farming activities.

The petition fails.

Petitioners argument that "[i]t would be absurd for [Olar] to bequeath his property to his estranged wife not to a
relative who had indeed helped him in tilling the property and [took] good care of his needs,"15 is a virtual
admission that their possession was not in the concept of owners, they having merely "helped" in tilling the lot,
thereby acknowledging that Olar was the actual possessor and tiller.

Absent evidence to the contrary, the presumption that the public officers who issued the CLOA to Olar regularly
performed their duties, including adhering to the provisions of Section 22 of the Comprehensive Agrarian Reform
Law (CARL) which provides:

SECTION 22. Qualified Beneficiaries. The lands covered by the CARP shall be distributed as much as possible
to landless residents of the same barangay, or in the absence thereof, landless residents of the same municipality
in the following order of priority:

(a) agricultural lessees and share tenants;

(b) regular farmworkers;

(c) seasonal farmworkers;

(d) other farmworkers;

(e) actual tillers or occupants of public lands;

(f) collectives or cooperatives of the above beneficiaries; and

(g) others directly working on the land.

Provided, however, That the children of landowners who are qualified under Section 6 of this Act shall be given
preference in the distribution of the land of their parents; And provided further, That actual tenant-tillers in the
landholding shall not be ejected or removed therefrom.

Beneficiaries under Presidential Decree No. 27 who have culpably sold, disposed of, or abandoned their land are
disqualified to become beneficiaries under this Program.

A basic qualification of a beneficiary shall be his willingness, aptitude and ability to cultivate and make the land as
productive as possible. The DAR shall adopt a system of monitoring the record of performance of each
beneficiary, so that any beneficiary guilty of negligence or misuse of the land or any support extended to him shall
forfeit his right to continue as such beneficiary. The DAR shall submit reports on the performance of the
beneficiaries to the PARC.

x x x x,

thus stands.

Even assuming arguendo that petitioners were indeed the actual tillers of the lot, their petition for the cancellation
of the CLOA issued in favor of Olar would not bind respondents as they were not impleaded.

Although estranged from Olar, respondent Fortunata remained his wife and legal heir, mere estrangement not
being a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.16 Rosalinda,
on the other hand, is the surviving spouse of Olars son. The two are thus real parties-in-interest who stand to be
injured or benefited by the judgment on the cancellation of the CLOA issued in Olars name.17

WHEREFORE, the petition is DENIED.

Costs against petitioners.

SO ORDERED.

CONCHITA CARPIO MORALES

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 145545 June 30, 2008

PAZ SAMANIEGO-CELADA, petitioner,

vs.
LUCIA D. ABENA, respondent.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the
Decision1dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision2 dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had declared
the last will and testament of Margarita S. Mayores probated and designated respondent Lucia D. Abena as the
executor of her will. It also ordered the issuance of letters testamentary in favor of respondent.

The facts are as follows:

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while
respondent was the decedents lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents,
grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay,
Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she bequeathed one-
half of her undivided share of a real property located at Singalong Manila, consisting of 209.8 square meters, and
covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M.
Abena in equal shares or one-third portion each. She likewise bequeathed one-half of her undivided share of a
real property located at San Antonio Village, Makati, consisting of 225 square meters, and covered by TCT No.
68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or one-third portion each.
Margarita also left all her personal properties to respondent whom she likewise designated as sole executor of her
will.

On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC
of Makati. The case was docketed as SP Proc. No. M-1531.

On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati. The
case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.

On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and
respondent as the executor of the will. The dispositive portion of the decision states:
 In view of the foregoing, judgment is hereby rendered:

1) declaring the will as probated;

2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in
paragraph VI of the probated will;

3) ordering the issuance of letters testamentary in favor of Lucia Abena.

So ordered.4

Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated
October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals decision states:

WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO, with
cost to oppositors-appellants.

SO ORDERED.5

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT

INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE
WILL BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER,
HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT
ISSUING LETTERS OF ADMINISTRATION TO HER.6

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to
comply with the formalities required by law, (2) whether said court erred in not declaring the will invalid because it
was procured through undue influence and pressure, and (3) whether it erred in not declaring petitioner and her
siblings as the legal heirs of Margarita, and in not issuing letters of administration to petitioner.

Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply with the formalities required under
Article 8058 of the Civil Code because the will was not signed by the testator in the presence of the instrumental
witnesses and in the presence of one another. She also argues that the signatures of the testator on pages A, B,
and C of the will are not the same or similar, indicating that they were not signed on the same day. She further
argues that the will was procured through undue influence and pressure because at the time of execution of the
will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her nephews for support,
and these alleged handicaps allegedly affected her freedom and willpower to decide on her own. Petitioner thus
concludes that Margaritas total dependence on respondent and her nephews compelled her to sign the will.
Petitioner likewise argues that the Court of Appeals should have declared her and her siblings as the legal heirs of
Margarita since they are her only living collateral relatives in accordance with Articles 10099 and 101010 of the Civil
Code.
Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of fact, not of
law and as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on
appeal to the Supreme Court. She also points out that although the Court of Appeals at the outset opined there
was no compelling reason to review the petition, the Court of Appeals proceeded to tackle the assigned errors and
rule that the will was validly executed, sustaining the findings of the trial court that the formalities required by law
were duly complied with. The Court of Appeals also concurred with the findings of the trial court that the testator,
Margarita, was of sound mind when she executed the will.

After careful consideration of the parties contentions, we rule in favor of respondent.

We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a
petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.

The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the presence of
the witnesses and of one another, whether or not the signatures of the witnesses on the pages of the will were
signed on the same day, and whether or not undue influence was exerted upon the testator which compelled her
to sign the will, are all questions of fact.

This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil
Procedure. Section 112 of Rule 45 limits this Courts review to questions of law only.

Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the
findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this
Court, unless the case falls under any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence
and contradicted by the evidence on record.13

We find that this case does not involve any of the abovementioned exceptions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners
arguments lack basis. The RTC correctly held:
 With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [Margarita
Mayores] was not mentally capable of making a will at the time of the execution thereof, the same is
without merit. The oppositors failed to establish, by preponderance of evidence, said allegation and
contradict the presumption that the testator was of sound mind (See Article 800 of the Civil Code). In fact,
witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months
before her death, testified that Margarita Mayores could engage in a normal conversation and he even
stated that the illness of the testator does not warrant hospitalization. Not one of the oppositors
witnesses has mentioned any instance that they observed act/s of the testator during her lifetime that could
be construed as a manifestation of mental incapacity. The testator may be admitted to be physically weak
but it does not necessarily follow that she was not of sound mind. [The] testimonies of contestant
witnesses are pure aforethought.

Anent the contestants submission that the will is fatally defective for the reason that its attestation clause
states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2)
pages only because the attestation is not a part of the notarial will, the same is not accurate. While it is true
that the attestation clause is not a part of the will, the court, after examining the totality of the will, is of the
considered opinion that error in the number of pages of the will as stated in the attestation clause is not
material to invalidate the subject will. It must be noted that the subject instrument is consecutively lettered
with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the
pages. The error must have been brought about by the honest belief that the will is the whole instrument
consisting of three (3) pages inclusive of the attestation clause and the acknowledgement. The position of
the court is in consonance with the "doctrine of liberal interpretation" enunciated in Article 809 of the Civil
Code which reads:

"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."

The court also rejects the contention of the oppositors that the signatures of the testator were affixed on
different occasions based on their observation that the signature on the first page is allegedly different in
size, texture and appearance as compared with the signatures in the succeeding pages. After examination
of the signatures, the court does not share the same observation as the oppositors. The picture (Exhibit
"H-3") shows that the testator was affixing her signature in the presence of the instrumental witnesses and
the notary. There is no evidence to show that the first signature was procured earlier than February 2,
1987.

Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the testator was in a good mood and smiling with the other
witnesses while executing the subject will (See Exhibit "H").

In fine, the court finds that the testator was mentally capable of making the will at the time of its execution,
that the notarial will presented to the court is the same notarial will that was executed and that all the
formal requirements (See Article 805 of the Civil Code) in the execution of a will have been substantially
complied with in the subject notarial will.14 (Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are
not compulsory heirs of the decedent under Article 88715 of the Civil Code and as the decedent validly disposed of
her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedents
estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in
CA-G.R. CV No. 41756 is AFFIRMED.

Costs against petitioner.

SO ORDERED.