PAULA CONDE vs .

ROMAN ABAYA

EN BANC
[G.R. No. 4275. March 23, 1909.]
PAULA CONDE , plainti-appellee, vs. ROMAN ABAYA , defendantappellant.

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 vs. 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:
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 liation 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 latter's 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 latter's
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 abovementioned right to demand the recognition of the natural child is extinguished at
the latter's 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 :
p

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:
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, led 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:
"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."

IV.
That Roman Abaya excepted to the foregoing judgment, appealed to
this court, and presented the following statement of errors:
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 nding 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 rst 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 aected
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."

This court has decided the present question in the manner shown in the
case of Juana Pimental vs. 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 liation 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 armative the court below has assigned the
following as the only foundation:
"In resolving a similar question Manresa says: 'An acknowledgment
can only be demanded by the natural child and his descendants whom it
shall benet, 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 dierence 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 aords 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:
"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."

On this supposition the rst dierence 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 liation, or to

recognize the natural liation, there exists the most radical dierence 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 dierence, 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 latter's action to claim
his legitimacy, or to obtain the acknowledgment of his natural liation, it is seen
that the code grants it in the rst 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
liation 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-dened 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:
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: rst, 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:
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 diculty 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:
"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 ve
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 x such a long and indenite 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 dierence
between the advantages granted to a legitimate child and to a natural one."

(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:
"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 armation 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 liation would be more
favored than one for legitimate liation. 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 liation apply by analogy to natural
liation, 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 child's 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 child's
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:

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

Article 944 reads:

"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."

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 liation 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:
"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 diculty 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."

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 child's 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
liation 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 nd 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 armed 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.

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.
DECISION
GUERRERO, J :
p

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., PlaintiAppellees vs. Cornelio Pamplona, et al., Defendants-Appellants," arming 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 certicates 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 plaintis
Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto.
"Marta Moreto died also intestate on April 30, 1938 leaving as her heir plainti
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 plainti

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 eected, 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 certicate 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
certicate of title was cancelled and a new transfer certicate 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 plaintis
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 plaintis 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 abovementioned as regards one half of the property subject matter of said deed; to
declare the plaintis as the rightful owners of the other half of said lot; to allow the
plaintis 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 plaintis; to order the defendants to pay
plaintis 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 plaintis 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 plaintis 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 s
certicate of title covering said portion and Transfer Certicate of Title No.
9843 of the oce of the Register of Deeds of Laguna shall be cancelled
accordingly and new titles issued to the plaintis and to the defendants
covering their respective portions.
'Transfer Certicate of Title No. 5671 of the oce 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 oce of the
Register of Deeds of Laguna the owner's duplicate of Transfer Certicate 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 satised 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, if 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 benets 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)

I n 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 without 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 identied and described the
land sold as Lot 1495. But actually, as veried later by a surveyor upon agreement
of the parties during the proceedings of the case below, the area sold was within Lot
1496.
cdphil

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 ling 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 petitioners-vendees, yet lifted no nger 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 as
follows:
"Art. 493.
Each co-owner shall have the full ownership of his part and of
the fruits and benets pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the eect 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 coownership."

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 dierent 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
erected 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 Flaviano
Moreto.
LLjur

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, beneted 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 transferring
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 party to pay therefor a price certain in money or its
equivalent.
A contract of sale may be absolute or conditional."
"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 eect 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 ling 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 Certicate 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 modication 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 Certicate of Title No. 9843 and to issue a new Transfer Certicate 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.
Footnotes
1.

Second Division: Perez, J., ponente; Reyes, J., concurring and Enriquez, J.,
concurring in the result.

2.

Records, pp. 12-17.

FIRST DIVISION
[G.R. No. 174144. April 17, 2007.]
BELLA A. GUERRERO, petitioner, vs. RESURRECCION A. BIHIS,
respondent.
DECISION
CORONA, J :
p

The Scriptures tell the story of the brothers Jacob and Esau 1 , siblings who fought
bitterly over the inheritance of their father Isaac's estate. Jurisprudence is also
replete with cases involving acrimonious conicts between brothers and sisters over
successional rights. This case is no exception.
On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A.
Guerrero and respondent Resurreccion A. Bihis, died at the Metropolitan Hospital in
Tondo, Manila.
On May 24, 1994, petitioner led a petition for the probate of the last will and
testament of the decedent in Branch 95 2 of the Regional Trial Court of Quezon City
where the case was docketed as Sp. Proc. No. Q-94-20661.
The petition alleged the following: petitioner was named as executrix in the
decedent's will and she was legally qualied to act as such; the decedent was a
citizen of the Philippines at the time of her death; at the time of the execution of
the will, the testatrix was 79 years old, of sound and disposing mind, not acting
under duress, fraud or undue inuence and was capacitated to dispose of her estate
by will.
Respondent opposed her elder sister's petition on the following grounds: the will
was not executed and attested as required by law; its attestation clause and
acknowledgment did not comply with the requirements of the law; the signature of
the testatrix was procured by fraud and petitioner and her children procured the will
through undue and improper pressure and influence.
In an order dated November 9, 1994, the trial court appointed petitioner as special
administratrix of the decedent's estate. Respondent opposed petitioner's
appointment but subsequently withdrew her opposition. Petitioner took her oath as
temporary special administratrix and letters of special administration were issued to
her.
On January 17, 2000, after petitioner presented her evidence, respondent led a
demurrer thereto alleging that petitioner's evidence failed to establish that the
decedent's will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the will
ruling that Article 806 of the Civil Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the testatrix's residence at
No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a
commissioned notary public for and in Caloocan City. The dispositive portion of the
resolution read:
WHEREFORE, in view of the foregoing, the Court nds, and so declares that
it cannot admit the last will and testament of the late Felisa Tamio de
Buenaventura to probate for the reasons hereinabove discussed and also in
accordance with Article 839 [of the Civil Code] which provides that if the
formalities required by law have not been complied with, the will shall be
disallowed. In view thereof, the Court shall henceforth proceed with intestate
succession in regard to the estate of the deceased Felisa Tamio de
Buenaventura in accordance with Article 960 of the [Civil Code], to wit: "Art.
960. Legal or intestate succession takes place: (1) If a person dies without a
will, or with a void will, or one which has subsequently lost its validity, . . . ."
SO ORDERED,

Petitioner elevated the case to the Court of Appeals but the appellate court
dismissed the appeal and affirmed the resolution of the trial court. 4
Thus, this petition. 5
Petitioner admits that the will was acknowledged by the testatrix and the witnesses
at the testatrix's residence in Quezon City before Atty. Directo and that, at that
time, Atty. Directo was a commissioned notary public for and in Caloocan City. She,
however, asserts that the fact that the notary public was acting outside his
territorial jurisdiction did not affect the validity of the notarial will.
Did the will "acknowledged" by the testatrix and the instrumental witnesses before
a notary public acting outside the place of his commission satisfy the requirement
under Article 806 of the Civil Code? It did not.
Article 806 of the Civil Code provides:
ART. 806.
Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.

One of the formalities required by law in connection with the execution of a notarial
will is that it must be acknowledged before a notary public by the testator and the
witnesses. 6 This formal requirement is one of the indispensable requisites for the
validity of a will. 7 In other words, a notarial will that is not acknowledged before a
notary public by the testator and the instrumental witnesses is void and cannot be
accepted for probate.
cDICaS

An acknowledgment is the act of one who has executed a deed in going before some
competent ocer and declaring it to be his act or deed. 8 In the case of a notarial

will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental
witnesses to declare before an ocer of the law, the notary public, that they
executed and subscribed to the will as their own free act or deed. 9 Such declaration
is under oath and under pain of perjury, thus paving the way for the criminal
prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. 10 It also provides a further
degree of assurance that the testator is of a certain mindset in making the
testamentary dispositions to the persons instituted as heirs or designated as
devisees or legatees in the will. 11
Acknowledgment can only be made before a competent ocer, that is, a lawyer
duly commissioned as a notary public. In this connection, the relevant provisions of
the Notarial Law provide:
SECTION 237.
Form of commission for notary public . The
appointment of a notary public shall be in writing, signed by the judge, and
substantially in the following form:
GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ____________
This is to certify that ______, of the municipality of ______ in said province,
was on the ____ day of ______, anno Domini nineteen hundred and _____,
appointed by me a notary public, within and for the said province, for
the term ending on the rst day of January, anno Domini nineteen hundred
and _____.
__________________
Judge of the Court of
First Instance 12 of said
Province
xxx xxx xxx
SECTION 240.
Territorial jurisdiction. The jurisdiction of a notary public
in a province shall be co-extensive with the province. The jurisdiction of a
notary public in the City of Manila shall be co-extensive with said city. No
notary shall possess authority to do any notarial act beyond the
limits of his jurisdiction. (emphases supplied)

A notary public's commission is the grant of authority in his favor to perform

notarial acts. 13 It is issued "within and for" a particular territorial jurisdiction and
the notary public's authority is co-extensive with it. In other words, a notary public
is authorized to perform notarial acts, including the taking of acknowledgments,
within that territorial jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he is not a notary public. Any notarial

act outside the limits of his jurisdiction has no force and eect. As this Court
categorically pronounced in Tecson v. Tecson: 14
An acknowledgment taken outside the territorial limits of the ocer's
jurisdiction is void as if the person taking it were wholly without ocial
character. (emphasis supplied)
AECDHS

Since Atty. Directo was not a commissioned notary public for and in Quezon City, he
lacked the authority to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the testatrix and her witnesses could not
have validly acknowledged the will before him. Thus, Felisa Tamio de
Buenaventura's last will and testament was, in eect, not acknowledged as
required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5.
Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes their
validity.

The violation of a mandatory or a prohibitory statute renders the act illegal and
void unless the law itself declares its continuing validity. Here, mandatory and
prohibitory statutes were transgressed in the execution of the alleged
"acknowledgment." The compulsory language of Article 806 of the Civil Code was
not complied with and the interdiction of Article 240 of the Notarial Law was
breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo
were all completely void.
The Court cannot turn a blind eye to Atty. Directo's participation in the preparation,
execution and unlawful "acknowledgment" of Felisa Tamio de Buenaventura's will.
Had he exercised his notarial commission properly, the intent of the law to
eectuate the decedent's nal statements 15 as expressed in her will would not
have come to naught. 16 Hence, Atty. Directo should show cause why he should not
be administratively sanctioned as a member of the bar and as an officer of the court.
HEDCAS

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.
Let a copy of this decision be furnished the Commission on Bar Discipline of the
Integrated Bar of the Philippines for investigation, report and recommendation on
the possible misconduct of Atty. Macario O. Directo.
SO ORDERED.

Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.

Puno, C.J., took no part.
Footnotes

1.

Jacob and Esau were the sons of Isaac and Rebekah. Even before they were born,
they were struggling against each other in the womb of their mother. Their
prenatal striving foreshadowed later conict. (Genesis 25:21-26) Jacob, the
younger of the two, desired Esau's birthright the special honor that Esau
possessed as the older son which entitled him to a double portion of his father's
inheritance. Jacob was later on able to acquire not only Esau's birthright and
superior right to inheritance but also their father's blessing. (Genesis 25:27-34, 27:
1-40)

2.

Presided by Judge (now Sandiganbayan Associate Justice) Diosdado M. Peralta.

3.

Rollo, pp. 81-87.

4.

Decision dated July 31, 2006 in CA-G.R. CV No. 76707. Penned by Associate
Justice Amelita G. Tolentino and concurred in by Associate Justices Portia AlioHormachuelos and Santiago Javier Ranada (retired) of the Fourth Division of the
Court of Appeals. Id., pp. 55-64.

5.

Under Rule 45 of the Rules of Court.

6.

The other formalities are:

(1)

the will must be in writing;

(2)

it must be written in a language or dialect known to the testator;

(3)
it 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;
(4)
it must be attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another;
(5)
the testator or the person requested by him to write his name and the
instrumental witnesses of the will shall also sign each and every page thereof,
except the last, on the left margin;
(6)
all the pages of the will must be numbered correlatively in letters placed on
the upper part of each page and
(7)

the will must contain an attestation clause.

7.

In the Matter of the Testate Estate of the Deceased Vicente C. Alberto , 408 Phil.
1281 (1959).

8.

Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61.

9.

Azuela v. Court of Appeals , G.R. No. 122880, 12 April 2006, 487 SCRA 119.

10.

Id.

11

Id.

12.

Now, Regional Trial Court.

13.

2004 Rules on Notarial Practice.

14.

61 Phil. 781 (1935).

15.

A will is the testator speaking after death. Its provisions have substantially the
same force and eect in the probate court as if the testator stood before the
court in full life making the declarations by word of mouth as they appear in the
will. (Dissenting opinion of J. Moreland in Santos v. Manalang, 27 Phil. 209 [1914]).

16.

For one, he testied during the proceedings in the trial court that the will was
executed and signed by the testatrix in his presence and in the presence of the
instrumental witnesses in the decedent's house in Quezon City and it was also
there where the same was acknowledged although his commission was for
Caloocan City. He also made it appear in the acknowledgment that the testatrix
and the witnesses personally appeared before him to execute and knowledge
the will in Caloocan City where he was commissioned as a notary public.

TEOPISTA DOLAR vs . FIDEL DIANCIN

FIRST DIVISION
[G.R. No. 33365. December 20, 1930.]
Estate of the deceased Paulino Diancin. TEOPISTA DOLAR,
proponent-appellant,
vs.
FIDEL
DIANCIN
ET
AL.,
oppositors-appellees.

Montinola, Montinola & Hilado for appellant.

Lopez Vito & Lopez Vito for appellees.
SYLLABUS
1.
WILLS, EXECUTION OF; SIGNING BY THUMBMARKS. The
requirement of the statute that the will shall be "signed" is satised not only by
the customary written signature but also by the testator's or testatrix'
thumbmark.
2.
ID.; ID.; EXPERT'S TESTIMONY AS TO IDENTITY OF THUMBMARKS.
Expert's testimony as to the identity of thumbmarks or ngerprints is admissible.
The method of identification of fingerprints is a science requiring close study.
3.
ID.; ID.; ID. Where thumb impressions are blurred and many of the
characteristic marks far from clear, thus rendering it dicult to trace the features
enumerated by experts as showing the identity or lack of identity of the
impressions, the court is justied 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. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep.,
759.)
4.
WITNESSES, CREDIBILITY OF. The testimony of a witness called by
both parties is worthy of credit.
DECISION
MALCOLM, J :
p

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
oered 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 an
"expert" and gave as his opinion that the thumbmarks 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 dierences existed between the questioned marks and the
genuine mark.
The requirement of the statute that the will shall be "signed" is satised
not only by the customary written signature but also by the testator's or
testatrix' thumbmark. Expert testimony as to the identity of thumbmarks or
ngerprints is of course admissible. The method of identication of ngerprints is
a science requiring close study. Where thumb impressions are blurred and many
of the characteristic marks far from clear, thus rendering it dicult to trace the
features enumerated by experts as showing the identity or lack of identity of the
impressions, the court is justied 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, note 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, one 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 say Paulino
Diancin make these impressions. The testimony of a witness called by both
parties is worthy of credit.

We reach the very denite 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, Ostrand, Johns, Romualdez and

Villa-Real, JJ., concur.

YAP TUA vs . YAP CA KUAN

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

Chicote & Miranda for appellants.

O'Brien & DeWitt for appellee.
SYLLABUS
1.
WILLS; FORM OF SIGNATURE; FIRST NAME OF TESTATOR ONLY. It
has been held time again that one who makes a will may sign the same by the
use of a mark, the name having been written by others. If the writing of a mark
simply upon a will is sucient indication of the intention of the person to make
and execute it, then certainly the writing of a portion or all of the name ought to
be accepted as a clear indication of intention to execute it. The man who cannot
write and who is obliged to make his mark simply therefore upon the will, is held
to "sign" as eectually as if he had written his initials or his full name. It would
seem to be sucient, under the law requiring a signature by the person making
a will to make his mark, to place his initials or all or any part of his name
thereon.
2.
ID.; SIGNATURE OF TESTATOR AND WITNESSES. While the rule is
absolute that one who makes a will must sign the same in the presence of the
witnesses and that the witnesses must sign in the presence of each other, as well
as in the presence of the one making the will, yet, nevertheless, the actual
seeing of the signature made is not necessary. It is sucient if the signatures are
made where it is possible for each of the necessary parties, if they so desire, to
see the signatures placed upon the will.
DECISION
JOHNSON, J :
p

It appears from the record that on the 23d of August, 1909, one Perfecto
Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of
First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap
Caong be admitted to probate, as the last will and testament of Tomasa Elizaga
Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in

the city of Manila on the 11th day of August, 1909. Accompanying said petition
and attached thereto was the alleged will of the deceased. It appears that the
will was signed by deceased, as well as Anselmo Zacarias, Severo Tabora, and
Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the
18th day of September, 1909. At that hearing several witnesses were sworn.
Timoteo Paez declared that he was 48 years of age; that he had known the said
Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909;
that before her death she had executed a last will and testament; that he was
present at the time of the execution of the same; that he had signed the will as a
witness; that Aselmo Zacarias and Severo Tabora had also signed said will as
witnesses and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of
age; that he knew Tomasa Elizaga Yap Caong during her lifetime; that she died
on the 11th day of August, 1909, in the city of Manila; that before her death she
had executed a last will and testament; that he was present at the time said last
will was executed; that there were also present Timoteo Paez and Severo Tabora
and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the
will in the presence of the witnesses; that he had seen her sign the will with his
own eyes; that the witnesses has signed the will in the presence of the said
Tomasa Elizaga Yap Caong and in the presence of each other; that the said
Tomasa Elizaga Yap Caong signed the will voluntarily; and in his judgment, she
was in the possession of her faculties; that there were no threats or intimidation
used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition
presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crosseld, judge,
on the 29th day of September, 1909, ordered that the last will and testament of
Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was
attached to the record and marked Exhibit A. The court further ordered that one
Yap Tua be a appointed as executor of the will, upon the giving of a bond, the
amount of which was to be fixed later.
From the record it appears that no further proceedings were had until the
28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and
presented a petition, alleging that they were interested in the matters of the sail
will and desired to intervene asked that a guardian ad litem be appointed to
represented them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as
guardian ad litem of said parties. Gabriel La O accepted said appointment, took
the oath of oce 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 inuence upon the part of persons who were to receive a
benet from the same, and because the said Tomasa Elizaga Yap Caong had
no intention of executing the same."

Second.
That before the execution of the said will, which they alleged to
be null, the said Tomasa Elizaga Yap Caong had executed another will, with all
the formalities required by law, upon the 6th day of August, 1909.
Third.
That the said Yap Ca Kuan and Yap Ca Llu were minors and that,
even though they had been negligent in presenting their opposition to the
legalization of the will, said negligent was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the
order of the 29th day of September, 1909, and to grant to said minors an
opportunity to present new proof relating to the due execution of said will. Said
petition was based upon the provisions of section 113 of the Code of Procedure in
Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged will of August 6,
1909, of the said Tomasa Elizaga Yap Caong, and the adavits of Severo Tabora,
Cleotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for
rehearing, the Honorable A. S. Crosseld, judge, granted said motion and ordered
that the rehearing should take place upon the 18th day of March, 1910, and
directed that notice should be given to the petitioners of said rehearing and to all
other persons interested in the will. At the rehearing a number of witnesses were
examined.
It will be remembered that one of the grounds upon which the new trial
was requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed
the will (Exhibit A) of the 11th of August, 1909; that it support of that allegation,
the protestants, during the rehearing, presented a witness called Tomasa Puzon.
Puzon testied that he was a professor and an expert in handwriting, and upon
being shown the will (of August 11, 1909) Exhibit A, testied that the name and
surname on Exhibit A, in his judgment were written by two dierent hands,
though the given name is the same as that upon Exhibit 1 (the will of August 6,
1909), because he found in the name "Tomasa" in Exhibit A a similarity in the
tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A
with the surname on Exhibit 1 he found that the character of the writing was
thoroughly distinguished and dierent by the tracing and by the direction of the
letters in the said two exhibits; that from his experience and observation he
believed that the name "Tomasa" and "Yap Caong," appearing in the signature
on Exhibit A were written by different persons.

Puzon, being cross-questioned with reference to his capacity as an expert in

handwriting, testied 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 telegraph operator for seventeen years and that he had acted as an expert
in handwriting in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testied 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 diculty; that she was in
her right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testied that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she was dead; that his signature as a witness to Exhibit A (the will
of August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga
Yap Caong, became familiar with the contents of the will because she signed it
before he (the witness) did; that he did not know whether anybody there told
her to sign the will or not; that he signed two wills; that he did not know La O;
that he did not believe that Tomasa had signed the will (Exhibit A) before he
arrived at the house; that he was not sure that he had seen Tomasa Elizaga Yap
Caong sign Exhibit A because there were many people and there was a screen at
the door and he could not see; that he was called as a witness to sign the second
will and was told by the people there that it was the same as the rst; that the
will (Exhibit A) was on a table, far from the patient, in the house but outside the
room where the patient was; that the will was signed by Paez and himself; that
Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias
signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong
could see the table on which the will was written at the time it was signed or
not; that there were many people in the house; that he remembered the names
of Pedro and Lorenzo; that he could not remember the names of any others; that
the will remained on the table after he signed it; that after he signed the will he
went into the room where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people asking Tomasa to
sign the will after he (the witness) has signed it; that he saw Paez sign the will;
that he could not remember whether Anselmo Zacarias had signed the will,
because immediately after he and Paez signed it, he left because he was hungry;
that the place where the table was located was in the same house, on the oor,
about two steps down from the floor on which Tomasa was.
Runo 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 rst on the 8th day of August; that he
visited her again on the 9th and 10th days of August; that on the rst visit he
found the sick woman completely weak very weak from her sickness, in the
third stage tuberculosis; that she was lying in bed; that on the rst visit he found
her with but little sense, the second day also, and on the third day she had lost
all her intelligence; that she died on the 11th of August; that he was requested
to issue the death certicate; that when he asked her (Tomasa) whether she was
feeling any pain or anything of that kind, she did not answer at all; that she was
in a condition of stupor, induced, as he believed, by the stage of uraemia from
which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, also called
as a witness during the rehearing. He testied 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 dierent from that in which the will was written; that the will was not
written in the presence of Tomasa; that he signed the will as a witness in the
room where Tomasa was lying; that the other witnesses signed the will in the
same room; that when he went into the room where the sick woman was
(Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showned the will to his sister (Tomasa) and
requested her to sign it; that she was lying stretched out on the bed and two
women, who were taking care of her, helped her to sit up, supporting her by
placing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the heat inside the room; when he came
back again to the sick bed the will was signed as was again in the hands of
Lorenzo; that he did not see Tomasa sign the will because he withdrew from the
room; that he did not know whether Tomasa had been informed of the contests
of the will or not; he supposed she must have read it because Lorenzo turned the
will over to her; that when Lorenzo asked her to sign the will, he did not know
what she said he could not hear her voice; that he did not know whether the
sick woman saw him sign the will or not; that he believed that Tomasa died the
next day after the will had been signed; that the other two witnesses, Timoteo
Paez and Severo Tabora, had signed the will in the room with the sick woman;
that he saw them sign the will and that they saw him sign it; that he was not
sure whether the testatrix could have seen them at the time they signed the will
or not; that there was a screen before the bed; that he did not think that Lorenzo
had been giving instructions as to the contents of the will; that bout ten or
fteen minutes elapsed from the time Lorenzo handed the will to Tomasa before
she started to sign it; that the pen with which she signed the will was given to
her and she held it.
Cleotilde Mariano testied 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 rst 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 rst; that Tomasa said she could not
sign it.
On cross examination he testied that there was a lot of visitors there; that
Zacarias was not there; that Paez and Tabora were there; that he had told
Tomasa that the second will was exactly like the first.
During the rehearing Cornelia
Serrano and Pedro Francisco were also examined as witnesses. There is
nothing in their testimony, however, which in our opinion is important.
In rebuttal Julia de la Cruz was called as a witness. She testied 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 nished, it was taken to where Doa Tomasa
was, for her signature; that it was taken her by Anselmo Zacarias; that she was
present at the time Tomasa signed the will that there were many other people
present also; that she did not see Timoteo Paez there; that she saw Severo
Tabora that Anselmo Zacarias was present; that she did not hear Cleotilde
Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa
that the second will was the same as the rst; that Tomasa asked her to help her
to sit up and to put a pillow to her back when Zacarias gave her some paper or
document and asked her to sign it; that she saw Tomasa take hold of the pen and
try to sign it but she did not see the place she signed the document, for the
reason that she left room; that she saw Tomasa sign the document but did not
see on what place of document she signed; that she heard Tomasa ask for
another notary public and that a notary public came the next morning that
Tomasa was able to move about in the bed; that she had seen Tomasa in the act
of starting to write her signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testied that he
knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw
the will at the time it was written; that he saw Tomasa sign it on her bed he did
not hear Lorenzo ask Tomasa to sign the will that Lorenzo had handed the will to
Tomasa to sign; that he saw the witnesses sign the will on a table near the bed;
that the table was outside the curtain or screen and near the entrance to the
room where Tomasa was lying.
Lorenzo Yap Caong testied as a witness on rebuttal. He said that he knew
Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong;
that Tomasa had given him instructions; that Tomasa had said that she wanted
to make another will; that he had seen the witnesses sign the will; that the will
was on the table near the bed of Tomasa; that Tomasa, from where she was
lying in the bed, could see the table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our

opinion, however, it is unnecessary to quote from them for the reason that their
testimony in no way affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crosseld, judge, in an
extended opinion, reached the conclusion that the last will and testament of
Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit
A was the last will and testament of the said Tomasa Elizaga Yap Caong and
admitted it to probate and ordered that the administrator therefore appointed
should continue as such administrator. From that order the protestants appealed
to this court, and made the following assignments of or error:
"I.
The court erred in declaring that the will, Exhibit A, was
executed by the deceased Tomasa Yap Caong, without the intervention of
any external influence on the part of other persons.
"II.
The court erred in declaring that the testator had clear
knowledge and knew what she was doing at the time of signing the will.
"III.
The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the rst 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 rst assignment of error, to wit, that undue inuence
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 inuence
had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it
is true that some of the witnesses testied that the brother of Tomasa, one
Lorenzo, had attempted to unduly inuence he mind in the execution of her will,
upon the other hand, there were several witnesses who testied 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 the note the
witnesses during their examination, reached the conclusion that a preponderance
of the evidence showed that no undue inuence had been used. We nd no good
reason in the record for reversing his conclusions upon that question.
With the reference to the second assignment of error, to wit, that Tomasa
Elizaga Yap Caong was not sound mind and memory at the time of the execution
of the will, we nd the same conict in the declarations of the witnesses which
we found with reference to the undue inuence. 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 testied 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 fteen minutes and nally 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 conict in the
testimony of the witnesses and the nding 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 rst 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 testied to that fact. The mere fact, however, that she
executed a former will is no proof that she did not execute a later will. She had
perfect right, by will, to dispose of her property, in accordance with the provisions
of law, up to the very last moment her life. She had a perfect right to change,
alter, modify or revoke any and all of her former wills and to make a new one.
Neither will the fact that the new will fails to expressly revoke all former wills, in
any way sustain the charge that she did not make the new will.
Third.
In said third assignment of error there is involved in the
testament that "The signature of Tomasa Elizaga Yap Caong, in her rst 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
testied that they saw her write the name "Tomasa." One of the witnesses
testied that she had written he full name. We are of the opinion, and we think
the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any
portion of her name to the will, with the intention to sign the same, that will
amount to a signature. It has been held time and time again that one who
makes a will may sign the same by using a mark, the name having been written
by others. If writing a mark simply upon a will is sucient 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. & 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 nd a very interesting case reported in 131 Pennsylavania State, 220
(6 L. R. A., 353), and cited by the appellees, which was known as "Knox's
Appeal." In this case one Harriett S. Knox died very suddenly on the 17th of
October, 1888, at the residence of her father. After her death a paper was found
in her room, wholly in her handwriting, written with a lead pencil, upon three
sides of an ordinary folded sheet of note paper and bearing the signature simply
of "Herriett." In this paper the deceased attempted to make certain disposition of
her property. The will was presented for probate. The probation was opposed
upon the ground that the same did not contain the signature of the deceased.

That was the only question presented to the court, whether the signature, in the
form above indicated, was a sucient 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 rst name only, does appear
to have arisen either in England or the United States; but the principle on
which the decisions already referred to were based, especially those in
regard to signing by initials only, are equally applicable to the present case,
and additional force is given to them by the decisions as to what constitutes
a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478;
Sanborne vs. Flager, 9 Allen, 474; Weston vs. Myers, 33 Ill., 424; Salmon
Falls, etc. Co. vs. Goddard, 14 How. (U. S.,), 446.)"

The man who cannot write and who is obliged to make his mark simply
therefor, upon the will, is held to "sign" as eectually as if he had written his
initials or his full name. It would seem to be sucient, under the law requiring a
signature by the person making a will, to make his mark, to place his initials or
all or any part of his name thereon. In the present case we think the proof shows,
by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her
full name, did at least sign he given name "Tomas," and that is sucient to
satisfy the statute.
With reference to the fourth assignment of error, it may be said that the
argument which has preceded is sufficient to answer it also.
During the trial of the cause protestants made a strong eort to show that
Tomasa Elizaga Yap Caong did not sign her name in the presence of the
witnesses and that they did not sign their names in her presence nor in the
presence of each other. Upon that question there is considerable conict of proof.
An eort 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 oor or the
other; that the table on which the witnesses signed the will was located upon the
lower oor 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
sucient if the signatures are made where it is possible for each of the necessary
parties, if they desire to see, may see the signature placed upon the will.
In case like the present where there is no much conict in the proof, it is
very dicult 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 nd that a preponderance of the
proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily,

while she was in the right use of all of her faculties, the will dated August 11,
1909 (Exhibit A). Therefore the judgment of the lower court admitting said will
to probate is hereby affirmed with costs.

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

EUTIQUIA AVERA vs . MARINO GARCIA

SECOND DIVISION
[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.
SYLLABUS
1.
WILLS; PROBATE; NECESSITY FOR PRODUCTION OF ATTESTING
WITNESSES. When the petition for probate of a will is contested the
proponent should introduce all three of the attesting witnesses, if alive and
within reach of the process of the court; and the execution of the will cannot be
considered suciently proved by the testimony of only one, without satisfactory
explanation of the failure to produce the other two.
2.
ID.; PLEADING AND PRACTICE; OBJECTION TO PROOF OF WILL BY
SINGLE WITNESS. Nevertheless, in a case where the attorney for the
contestants raised no question upon this point in the court below, either at the
hearing upon the petition or in the motion to rehear, it is held that an objection
to the probate of the will on the ground that only one attesting Witness was
examined by the proponent of the will without accounting for the absence of the
others, cannot be made for the first time in this court.
3.
WILLS; SIGNATURES OF TESTATOR AND ATTESTING WITNESSES;
USE OF RIGHT MARGIN. A will otherwise properly executed in accordance with
the requirements of existing law is not rendered invalid by the fact that the
paginal signatures of the testator and attesting witnesses appear in the right
margin instead of the left.
DECISION
STREET, J :
p

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 testied with details not
necessary to be here specied 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, rst, 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 rst point, while it is undoubtedly true that an uncontested will
may be proved by the testimony of only one of the three attesting witnesses,
nevertheless in Cabang vs. Delnado (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 that
probate would not be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon nding 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 sucient 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 ling of the motion for a new trial. Accordingly
it is insisted for the appellee that this question cannot now be raised for the rst
time in this court. We believe this point is well taken, and the rst assignment of
error must be declared not to 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 reasons why the appellate tribunals are disinclined
to permit certain questions to be raised for the rst time in the second instance.
In the rst place it eliminates the judicial criterion of the Court of First Instance
upon the point there presented and makes the appellate court in eect a court of
rst 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 trie
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 upon appeal; and this is the more proper when
the 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 its 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 rst raised by the appellant in this court. We hold that
this is too late.
Properly understood, the case of Cabang vs. Delnado, 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 at 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 eect 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 that it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the eect 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 of 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 here 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 dierence 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 testatrix 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 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. 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 armed. It is so ordered, with costs against the
appellants.

Johnson, Araullo, Avancea and Villamor, JJ., concur.

FILOMENA NAYVE vs . LEONA MOJAL and LUCIANA AGUILAR

SECOND DIVISION
[G.R. No. 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.
SYLLABUS
1.
WILLS; SIGNATURES ON MARGIN. Where each and every page
upon which the will is written was signed by the testator and the witnesses, the
fact that the signatures on each page do not all appear on the left margin thereof
does not detract from the validity of the will. (Avera vs. Garcia and Rodriguez, 42
Phil., 145.)
2.
ID.; PAGING WITH ARABIC NUMERALS. Paging with arabic
numerals and not with letters is within the spirit of the law, and is just as valid as
paging with letters. (Unson vs. Abella, 43 Phil., 494.)
3.
ID.; ATTESTATION CLAUSE; STATEMENT OF NUMBER OF PAGES.
The number of sheets or pages of which the will is composed must be stated in
the attestation clause (Uy Coque vs. Navas L. Sioca, 43 Phil 405); but where such
a fact appears at the end of the will so that no proof aliunde is necessary of the
number of its sheets, then the failure to state in the attestation clause the
number of the pages of the instrument does not invalidate it.
4.
ID.; ID.; SIGNING OF WILL. The attestation clause must state the
fact that the testator and the witness 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. But 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 fact
does not invalidate the will.
DECISION
ROMUALDEZ, J :
p

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 rst 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 one 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 rst two sides or pates, which was used,
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 at 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 middles of the page and at the end of the
attestation clause.
In the 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 on the right, margin. The
rule laid down in that case is that the document contained the necessary
signatures on each page, whereby each page if 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.

Turning to the second defect alleged, that is to say, the fact that the sheets
of the document are not paged with letters, suce it to cite the case of Unson vs.
Abella (43 Phil., 494), where this court held that paging with Arabic numerals
and not with letter, 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 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 point 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 in 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
suciently 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 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 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 armed 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 probated 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 is 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 940 Phil., 476), the attestation
clause pertains to the attesting witnesses ad 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 Duico, 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
with 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
violate 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

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 Justices Avancea and

Ostrand.

ADRIANO MENDOZ A vs . CALIXTO PILAPIL, ET AL.

EN BANC
[G.R. No. 47931. Junio 27, 1941.]
Testamentaria del nado Rev. P. Eleuterio Pilapil. ADRIANO
MENDOZA, solicitante-apelado, contra CALIXTO PILAPIL y OTROS,
opositores-apelantes.

D. Filemon Sotto y D. Numeriano G. Estenzo en repre sentacion de los

apelantes.
Sres. Alonso y Alonso en representacion del apelado.
SYLLABUS
1.
TESTAMENTOS; LEGALIZACION; DISPOSICION DEL TEETADOR DE
QUE SU TESTAMENTO NO SE VENTILE EN EL JUZGADO. La disposicion del
testador de que su "Testamento y Ultima Voluntad no se ventile en el Juzgado",
no puede despojar a los Tribunales de su autoridad para determinar si su referido
testamento es legalizado o no. No son las partes interesadas en un sentido u otro
en un asunto, las que pueden conferir o quitar jurisdiccion y autoridad a los
Tribunales para resolver y decidir lo que la misma ley quiere que se resuelva y se
decida. Debe tenerse presente que la ley manda bajo pena, que se entreguen al
Juzgado los testamentos otorgados por un testador, luego que este muera, por la
persona a quien su custodia se haya encomendado, con el n indudablemente de
que se pueda determinar si procede su legalizacion y se pueda al propio tiempo
disponer de sus bienes segun lo manda en los mismos; o si por el contrario, debe
declararsele muerto intestado, por no ser susceptible de legalizacion el que
hubiese otorgado. (Arts. 626 al 631, Ley. No. 190.)
2.
ID.; ID.; PAGINACION; CLAUSULA DE ATESTIGUAMIENTO. Y cuanto
a que los exhibits A y C no pueden ser legalizados porque no se prepararon ni se
rmaron de conformidad con la ley, diciendose que sus paginas no estan
numeradas con letras; y porque en su clausula de atestiguamiento no se expresa
que los mismos fueron rmados por los tres testigos instrumentales, en presencia
del testador, baste llamar la atencion al hecho de que al pie de la primera pagina
hay en letras la nota que dice claramente: "Pase a la 2. a pagina"; y al hecho de
que, al pie de esta segunda pagina, hay esta otra nota: "Pase a la 3. a pagina"; y
baste llamar tambien la atencion a las dos primeras lineas de dicha tercera
pagina que es la ultima, donde, para completar la disposicion que se encierra en
el ultimo parrafo de la pagina anterior, o sea segunda se dice lo siguiente: ". . .
consta de dos articulos; contiene dieciseis disposiciones y esta escrito en tres
paginas", lo cual concuerda elmente con los verdaderos hechos tales como
aparecen en los referidos dos exhibits, porque contienen efectivamente dos

articulos y dieciseis disposiciones, y no mas, y no menos.

3.
ID.; ID.; ID.; ID. En la clausula de atestiguamiento en una y otra
copia del Testamento objeto de cuestion, se arma por los tres testigos
instrumentales que la rmaron, que "el pre-inserto Testamento y ultima
Voluntad, ha sido suscrito, declarado y jurado por el testador, Rev. P. Eleuterio
Pilapil en presencia de todos nosotros"; y a renglon seguido, se arma tambien
pol, los mismos testigos que: a ruego de dicho Testador, rmamos cada uno de
nosotros, aqui en Cebu, Cebu, 1. F., hoy dia 27 de noviembre de 1935". La frase
"a ruego de dicho Testador", unida a la de que suscribio y rmo su testamento en
presencia de los testigos instrumentales, permite y justica la inferencia de que
el testador estaba presente cuando los ultimos estamparon alli sus respectivas
firmas.
4.
ID.; ID.; ID.; ID.; PROPOSITO DE LA LEY. El proposito de la ley al
establecer las formalidades que se requieren en un testamento, es
indudablemente asegurar y garantizar su autenticidad contra la mala fe y el
fraude, para evitar que aquellos que no tienen derecho a suceder al testador, le
sucedan y salgan benecindos con la legalizacion del mismo. Se ha cumplido
dicho proposito en el caso de que se viene hablando porque, en el mismo cuerpo
del testamento y en la misma pagina donde-aparece la clausula de
atestiguamiento, o sea la tercera, se expresa que el testamento consta de tres
paginas; y porque cada una de las dos primeras lleva en parte la nota en letras, y
en parte la nota en guarismos, de que son respectivamente la primera y segunda
paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda
sospecha, o todo asomo de duda de que se haya sustituido alguna de sus paginas
con otra.
DECISION
DIAZ, M :
p

Las cuestiones principales que los opositores nos presen. tan para su
resolucion, al apelar de la decision del Juzgado de Primera Instancia de Cebu,
dictada en el expediente de testamentaria No. 407 de dicho Juzgado, pueden
reducirse a las siguientes:
1.a
Si el Juzgado de Cebu podia nombrar el 4 de marzo de 1939, al
apelado como administrador especial de los bienes relictos del nado P. Eleuterio
Pilapil (expediente de testamentaria No. 407), estando como estaba entonces
actuando como administrador de los mismos bienes, desde el 7 de febrero de
1939, el apelante Calixto Pilapil, que promovio un dia antes, el Expediente de
Intestado del mismo nado P. Eleuterio Pilapil, en dicho Juzgado (expediente No.
399, Juzgado de Cebu); y
2.a
Si procedia y procede la legalizacion como testamento o disposicion
de ultima voluntad del nado P. Eleuterio Pilap.l, del documento obrante en
autos como Exhibit A que es un duplicado al carbon del Exhibit C.

Los hechos pertinentes que hay que tener en cuenta al resolver las
cuestiones propuestas son, segun se desprenden de la decision apelada y de los
mismos documentos que e] Juzgado declaro ser testamento y ultima voluntad del
finado P. Eleuterio Pilapil, los que a continuacion se relatan:
El P. Eleuterio Pilapil, siendo Cura de la parroquia de Mualboal de la
Provincia de Cebu, fallecio en la ciudad de este nombre el 6 de diciembre de
1935. No habiendose presentado ningun testamento suyo despues de su muerte!
por lo menos hasta principios de febrero de 1939, su hermano Calixto Pilapil
promovio el dia 6 de dichos mes y ano, el expediente de intestado No. 399 para
pedir que fuese nombrado administrador de los bienes relictos de el. Recibida a
prueba la solicitud que habia presentado para el indicado n, previas las
publicaciones de los avisos prescritos por la ley, y oyendo el Juzgado previamente
a los que comparecieron para oponerse a la misma, entre los cuales estaban el
mismo apelado y Simeona Pilapil, el Juzgado se la concedio, nombrandole acto
seguido administrador de dicho Intestado. A los pocos dias, o sea el 4 de marzo de
1939, el apelado promovio a su vez el expediente No. 407 de que antes se ha
hecho mencion, para pedir la legalizacion como testamento del nado P.
Eleuterio Pilapil, del Exhibit A que es el duplicado al carbon del Exhibit C. Hay
entre las clausulas de dichos dos documentos, las que se insertan a continuacion
por su pertinencia a las cuestiones planteadas y tambien por la importancia que
tienen:
"Yo, Eleuterio Pilapil, Sacerdote de la Iglesia Catolica Apostolica
Romana, de sesenta y ocho anos de edad, natural de Liloan, actualmente,
Cura Parroco de la Parroquia de Mualboal, Provincia de Cebu, I. F., gozando
de salud y en PLENO uso DE MIS FACULTADES MENTALES, por la presente,
Fublico, declaro y otorgo lo siguiente como MI TESTAMENTO Y ULTIMA
VOLUNTAD:
"ART. PRIMERO:
Instituyo y nombro al Sr. Adriano rIendoza, mi
sobrino politico, casado, mayor de edad y vecino del Municipio de Liloan,
Provincia de Cebu, I. F., ALSACEA-EJECUTOR de este mi Testamento y Ultima
Voluntad: Entendiendose, Que, en caso de imposibilidad, negligencia u otra
causa con que se cohibe hacer cumplir este mi Testamento y Ultima
Voluntad, mediante fianza, clispongo y ordeno que sea sustituido en el cargo
de albaceaejeCutor de este mi Testamento y Ultima Voluntad, por mi Primo,
Jose Cabatingan, casado, mayor de edad, residente del Municipio de
Mualboal, Provincia de Cebu, I. F., quien se encargar:l y hara que se cumplan
estas mis siguientes disposiciones:
xxx xxx xxx
"2.a
Dispongo y ordeno que este mi Testamento y Ultima Voluntad
No se ventile en el Juzgado, toda vez que este Testamento y Ultima
Voluntad, simplemente corrobora, arma y asegura la legitimidad de los
documelltos de compraventa de mis bienes;
"ART. SEGUNDO:
Por la presente, hago constar que este Mi
Testamento y Ultima Voluntad, que corrobora, arma y asegura la
legitimidad de documentos por mi otorgado a los compradores consta de
dos articulos; contiene diecisei disposiciones y esta escrito en tres paginas;
xxx xxx xxx

"Cebu, Cebu, I. F., hoy dia 27 de noviembre de 1935.

(Firmado) ''ELEUTERIO PILAPIL
"Testador";

al final de los mismos (exhibits A y C), hay esta clausula de atestiguamiento:

"Al que leyere:
SALUD,
Nosotros los que abajo rmamos, hacemos constar. Que el preinserto Testamento y Ultima Voluntad, ha sido suscrito, declarado y jurado
por el Testador, Rev. P. Eleuterio Pilapil en presencia de todos nosotros y a
ruego de dicho Testador, rmamos cada uno de nosotros en presencia de
nosotros, aqui en Cebu, Cebu, I. F., hoy dia 27 de noviembre de 1935.
(Firmados) "WENCESLAO PILAPIL
"Testigo
"MARCELO PILAPIL
"Testigo
"EUGENIO K. PILAPIL
"Testigo"

Los dos documentos, exhibits A y C, constan de tres paginas; y en el margen

izquierdo de cada una de las dos primeras, aparecen las rmas que se ven al nal
del cuerpo principal de dichos documentos y de su clausula de atestiguam~ento,
y que son, segun las pruebas, rmas del nado P. Eleuterio Pilapil, y de los
testigos Wenceslao Pilapil, Marcelo Pilapil y Eugenio K. Pilapil.
En el lugar de la fecha tanto de los dos documentos como ae su clausula de
atestiguamiento, aparece escrita la palabra Cebu sobre algo que se trato de
raspar pero que aun puede verse que decia "Mualboal"; y aparecen tambien el
guarismo "27" y el nombre de mes: "Noviembre", escrito este ultimo sobre una
palabra raspada que aun puede verse tambien sin ninguna dicultad, por lo
menos en el Exhibit A, que dice: "octubre". En el ultimo parrafo de la pagina 2
cuya continuacion aparece en las dos primeras lineas de la pagina siguiente,
(pagina 3), que es la ultima, hay la mencion expresa siguiente: "contiene
dieciseis disposiciones y esta escrito en tres paginas". Al pie de las paginas (1) y
(2) hay respectivamente estas notas: "Pase a la 2 a . pagina"; "Pase a la 3'.
pagina". Y de le notarse que tanto en el uno como en el otro de los aludidos
Exhibits A y C, no hay mas que dos articulos ("Art. Primero" y "Art. Segundo"), y
dieciseis disposiciones.
Las razones en que los apelantes se apoyall para sostenel. que no procede la
legalizacion de ninguna de los dos expresados documentos como testamento del
finado P. Eleuterio Pilapil, son estas:
(a)

Que contienen raspaduras y alteraciones que el apelado dejo de

explicar;
(b)
Que no se ha probado que el nado, prescindiendo de lo que
consta en los referidos clocumentos exhibits A y C , era de edad competente
para testar;
(c)
Que tampoco se ha probado que el nado poseia el espaol que es el
lenguaje en que aparecen escritos los referidos documentos;
(d)
Que en una de las clausulas de dichos documentos hay la prohibicion
de que se ventilen en los Tribunales;
(e)
Que ninguno de los dos se ha preparado, rmado y l atestiguado de
conformidad con las disposiciones del articulo 618 del Codigo de Procedimiento
Civil.
Con respecto a la primera cuestion, debe decirse que, 8egun nos lo dice la
misma Pieza de Apelacion de los apelantes, los dos expedientes Nos. 399 y 407 se
promovieron en dos Salas distintas del Juzgado de Primera Instancia de Cebu. El
primero fue promovido en la Sala III; y el ultimo, en la Sala II. Al enterarse el
Juez de una de dichas Salas que habia una relacion directa entre uno y otro,
dispuso que los dos se conociesen por un solo Juez; de ahi que ambos se
consideraran como uno solo para evitar lo que el mencionado Juez dijo:
"incompatibilidad en la ad ministracion de los bienes de dicho difunto",
refiriendose a finado P. Eleuterio Pilapil.
Indudablemente no le falto razon al Juzgado de Cebu para nombrar
administrador especial en el expediente No. 407 al apelado, porque en los
documentos que alli se trataban de legalizar como testamento y disposicion de
ultima voluntad del nado P. Eleuterio Pilapil, consta el encargo expreso de que
lo fuese. Ademas, no habia ni hay ninguna ley que prohiba a los Tribunales que
conocen de un expediente de testamentaria o de intestado, nombrar a mas de un
admi nistrador; y, en el caso de que se trata ocurrio que se dejo sin efecto el
nombramiento del apelante como administrador luego que se fundieron los dos
referidos expedientes. Mas todavia; si el proposito de los apelantes al proponer la
cuestion de que venimos hablando, es dejar sin efecto el nombramiento expedido
a favor del apelado como administrador especial, vano es y vano ha de ser dicho
proposito porque el insistir en el equivale a estar apelando de una orden del
Juzgado que nombra a un administrador especial; y la ley no permite apelacion
contra ordenes de dicha naturaleza. Es terminante la disposicion de ley que dice:
"No se permitira la apelacion contra el nombramiento de dicho administrador
especial". (Art. 660, Ley No. 190.)
En adicion a todo esto deoe decirse que, si hubo algun error en el
nombramiento del apelado como administrador especial, por la razon de que otro
en propiedad ya estaba nombrado por el Juzgado, el error, si tal puede llamarse,
no ha sido de tal naturaleza que haya causado perjuicio alguno a nadie, y menos
a la Testamentaria del finado P. Eleuterio Pilapil.
Las raspaduras y alteraciones que se notan en los exhibits A y C constituyen
unos hechos a los que ahora, por primera vez, y en esta instancia, se quiere
llamar la atencion cuando ello debio haberse hecho mientras la causa se ha;laba
todavia en el Juzgado de su procedencia. No podemos tenerlos en cuenta en el

presente estado de las actuaciones porque, suponiendo que entonces ya existian,

puede y debe decirse, aunque no lo dijo en terminos expresos el Juzgado de Cebu,
que considero que no viciaban dichos documentos; pues es presuncion juris
tantum que "todos los hechos relacionados con los puntos discutidos en un juicio
fueron expuestos al juzgado y apreciados por el". (Art. 334, par. 16, Ley No. 190.)
Y no lo viciaron en efecto, porque se desprende de las mismas circunstancias del
caso, que se hicieron precisamente para poner las cosas en su verdadero lugar.
Los dos exhibits A y C fueron preparados por el nado P. Eleuterio Pilapil en
Mualboal donde era Cura Parroco, antes de ser trasladado para ser tratado de su
enfermedad que le causo la muerte, al Southern Islands Hospital de Cebu, donde
murio. Fundandose el Juzgado en estos hechos que se probaron en juicio, declaro
lo siguiente: "La intervencion de los tres testigos instrumentales del documento
tuvo lugar de una manera casual, en ocasion en que los mismos fueron a visitarle
a Eleuterio Pilapil que estaba enfermo en el Southern Islands Hospital, y alli el
hoy nado les rog6 que actuaran de testigos del documento que ya tenia
entonces preparado".
Al prepararlos el, estando en Mualboal, no era mas quc natural que
expresase en los mismos que alli fueron preparados, y dejase en blanco la fecha
pero sin dejar de poner el nombre del mes en que se pusieron en limpio, es decir,
octubre de 1935.
Cuanto a la edad del testador y cuanto a si hablaba el espanol que es la
lengua en que aparecen redactados los dos exhibits, o no, debe decirse que siendo
sacerdote y Cura de la parroquia de Mualboal, Cebu, debe presumirse
fundadamente que tenia la edad competente para testar, y que entendia y
hablaba el espaol, pues, es de conocimiento general que para ser Cura de una
parroquia, uno debe ser sacerdote, y para serlo, son necesarios muchos ailos de
estudio en seminarios donde se habla el espanol que es una lengua tan ocial
como la inglesa. Por otra parte, no consta que se haya probado que el testador no
entendia dicha lengua.
La disposicion del testador de que su "Testamento y Ultima Voluntad no se
ventile en el Juzgado", no puede despojar a los Tribunales de su autoridad para
determinar si su referido testamento es legalizable o no. No son las partes
interesadas en un sentido u otro en un asunto, las que pueden conferir o quitar
jurisdiccion y autoridad a los Tribunales para resolver y decidir lo que la misma
ley quiere que se resuelva y se decida. Debe tenerse presente que la ley manda
bajo pena, que se entreguen al Juzgado los testamentos otorgados por un
testador, luego que este muera, por la persona a quien su custodia se haya enco
mendado, con el n indudablemente de que se pueda determinar si procede su
legalizacion y se pueda al propio tiempo disponer de sus bienes segun lo manda
en los mismos; o si por el contrario, debe declararsele muerto intestado, pol. no
ser susceptible de legalizacion el que hubiese otorgado. (Arts. 626 al 631, Ley No.
190.) Ademas, no siendo abogado el testador, no es de extraar que haya
consignado en su testamento la prohibicion de que, usando sus mismas
palabras , "se ventile en el Juzgado".
Y cuanto a que los exhibits A y C no pueden ser legalizados porque no se
prepal.aron ni se rmaron de conformidad con la ley, diciendose que sus pagina.s

no estan numeradas con letras; y porque en su clausula de atestiguamiento no se

expresa que los mismos fueron rmados por los tres testigos instrumentales, en
presencia del testador, baste llamar la atencion al hecho de que al pie de la
primera pagina hay en letras la nota que dice claramente: "Pase a la 2 a. pagina";
y al hecho de que, al pie de esta segunda pagina, hay esta otra nota: "Pase a la
3a . pagina"; y baste llamar tambien la atencion a las dos primeras lineas de dicha
tercera pagina que es la ultima, donde, para completar la disposicioll que se
cncierra cn el ultimo-parrafo de la pagina anterior, o sea segunda, sc dice lo
siguiente:
". . . consta de dos articulos; contiene dieciseis disposiciones y esta
escrito en tres paginas",

lo cual concuerda fielmente con los verdaderos hechos tales como aparecen en los
rcferidos dos exhibits, porque contienen efectivamente dos articulos y dieciseis
disposiciones,y no mas, y no menos.
En la clausula de atestiguamiento en una y otra copia del Testamento
objeto de cuestion, se arma por los tres testigos instrumentales que la rmaron,
que
"el pre-inserto Testamento y ultima Voluntad, ha sido suscrito,
declarado y jurado por el Testador, Rev. P. Eleuterin Pilapil en presencia de
todos nosotros";

ya renglon seguido, se afirma tambien por los mismos testigos que:

"a ruego de dicho Testador, rmamos cada uno de nosotros, aqui en
Cebu, Cebu, I. F., hoy dia 27 de noviembre de 1935."

La ase "a ruego de clicho Testador", unida a la de que suscribio y rmo su

testamento en presencia de los testigos instrumentales, permite y justica la
inferencia de que el testador estaba presente cuando los ultimos estamparon alli
sus respectivas firmas.
El proposito de la ley al establecer las formalidades que se requieren en un
testamento, es indudablemente asegurar y garantizar su autenticidad contra la
mala fe y el fraude, para evitar que aquellos que no tienen derecho a suceder al
testador, le sucedan y salgan beneciados con la legalizacion del mismo. Se ha
cumplido dicho proposito en el caso de que se viene hablando porque, en el
mismo cuerpo del testamento y en la mismo pagina donde aparece la clausula de
atestiguamiento, o sea la tercera, se expresa que el testamento consta de tres
paginas y porque cada una de las dos primeras lleva en parte la nota en letras, y
en parte la nota en guarismos, de que son respectivamente la primera y segunda
paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda
sospecha, o todo asomo de duda de que se haya sustituido alguna de sus paginas
con otra.
Algo mas que en el caso de Nayve contra Mojal y Aguilar (47 Jur. Fil., 160),
que fue aclarada mediante la causa de Gumban contra Gorecho y otros (50 Jur.
Fil., 31), hay en el presente caso porque alli no habia mas que las notas "Pag. 1";
"Pag. 2"; "Pag. 3"; y "Pag. 4" en la cara respe tiva de las cuatro paginas de que se
compone, y en el presente hay los clatos ya mencionados y hay ademas la cons
tancia inserta en las dos primeras lineas de la tercel a pagina de los exhibits A y

C, de que los mismos estan com puestos de tres paginas, y contienen dos
articulos y dieci seis disposiciones.
Son por consiguiente de perfecta aplicacion al caso de que se trata lo que
dijimos en las causas de Rodriguez contra Yap, R. G. No. 45924, mayo 18, 1939; y
Dichoso cont ra De Gorostiza (57 Jur. Fil., 456). Dijimos en dichas causas,
respectivamente, lo siguiente:
"La redaccion de la clausula de atestiguamiento en este testamento no
esta tecnicamente libre de reparos, pero, es sustancialmente un
cumplimiento suficiente de la ley.
Mantenemos el criterio de que debe exigirse el cumplimiento estricto
de los requisitos substanciales del testamento, para asegurar su
autenticidad, pero, al mismo tiempo creemos que no deben tenerse en
cuenta defectos de forma que no pueden afectar a este n y que, por otra
part, de tenerse en cuenta, podrian frustrar la voluntad del testador."
(Rodriguez contra Yap, supra.)
"No debera permitirse que las formalidades legales obstaculicen el
empleo de buen sentido comun en la consideracion de testamentos y que
frustren los cleseos de los difuntos solemnemente expresados en sus
testamentos, en cuanto a cuyo otorgamiento no hay ni siquiera sombra de
mala fe ni de fraude". (Dichoso contra De Gorostiza, supra.)

Por todo lo expuesto, hallando arreglada a derecho la decisio apelada del

Juzgado de Primera Instancia de Cebu, por la presente, la conrmamos,
condenando a los apelantes a pagar las costas. Asi se ordena.

Avancea, Pres., Diaz, Laurel, Moran, y Honrilleno, MM., estan conformes.

Separate Opinions
MORAN, M., disidente:
La clausula de atestiguamiento es como sigue:
"Nosotros los que abajo rmamos, hacemos constar: Que el preinserto Testamento y Ultima Voluntad, ha sido suscrito, declarado y jurado
por el Testador, Rev. P. Eleuterio Pilapil en presencia de todos nosotros y a
ruego de dicho Testador, rmamos cada uno de nosotros en presencia de
nosotros, aqui en Cebu, Cebu, I. F., hoy dia 27 de noviembre de 1935."

No consta en esta clausula que los testigos instrumentale6 hayan rmado

el testamento en presencia del testador y, por consiguiente, el testamento no
puede ser legalizado. Pero la mayoria arguye que "la frase 'a ruego de dicho
Testador,' unida a la de que suscribio y rmo su testamento en presencia de los
testigos instrumentales, permite y justica la inferencia de que el testador estaba
presente cuando los ultimos estamparon alli sus respectivas rmas." Pero, ya
hemos dicho repetidas veces que las solemnidades de un testamento requeridas
por la ley no pueden acreditarse mediante pruebas aluinde Por tanto, pruebas de
inferencia son inadmisibles, mayormente si la inferencia no esta del todo

ajustada a la logica.
Por estas consideraciones, disiento de la opinion de la mayoria.

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 :
p

The Case
Before the Court is a petition for review 1 assailing the Decision 2 of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution 3 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") led 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 inuence on
the part of the beneciaries. 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 led another petition 6 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 led a petition 7 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 le any motion for reconsideration, the
order allowing the probate of Toray's 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 sucient 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 Abbellar 11 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 armed the
Resolution of the RTC-Kabankalan. The appellate court found that the RTCKabankalan 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 Procedure 14
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 Abada's 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 aect the same, unless it be written in the language or dialect
known by the testator and signed by him, 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 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 testator's

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. . . . 18

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 Code 21 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 identied 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 Procedure 22 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, Abada's will does not require
acknowledgment before a notary public.
HCaDET

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-Noble's 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 testied 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 suciently proves that
Abada speaks the Spanish language.

The Attestation Clause of Abada's Will

A scrutiny of Abada's will shows that it has an attestation clause. The attestation
clause of Abada's will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y

testamento en presencia de nosotros, habiendo tambien el testador rmado

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 rmamos
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 rst 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 rmado 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 eectivity
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:
. . . 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 suer from
some imperfection of language, or other non-essential defect. . . . .
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. . . . 33

We rule to apply the liberal construction in the probate of Abada's will. Abada's 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 oer any puzzle or diculty, 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 ll 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 within its connes, 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.
ATCEIc

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 sucient if from the language employed it can

reasonably be deduced that the attestation clause fullls what the law
expects of it. 35

The last part of the attestation clause states "en testimonio de ello, cada uno de
nosotros lo rmamos 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., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

Footnotes
1.

Under Rule 45 of the 1997 Rules of Civil Procedure.

2.

Penned by Associate Justice Presbitero J. Velasco, Jr. (now Court Administrator)

with Associate Justices Ruben T. Reyes and Juan Q. Enriquez, Jr., concurring.

3.

Penned by Presiding Judge Rodolfo S. Layumas.

4.

Alipio C. Abaja tried to secure a copy of Abada's death certicate but the Local Civil
Registrar of Cawayan, Negros Occidental informed him that all the records of prewar deaths were destroyed during the war.

5.

In the matter of the Probate of the Last Will and Testament of the late Alipio
Abada.

6.

In the matter of the Probate of the Last Will and Testament of the late Paula Toray.

7.

In the matter of the Intestate Estate of Spouses Alipio Abada and Paula Toray.
Petition for Letters of Administration.

8.

Records, p. 38.

9.

Ibid., p. 41.

10.

Ibid., pp. 42-45.

11.

It should be Abellar.

12.

Rollo, p. 47.

13.

Petitioner phrases this issue as to whether the will has to be "notarized." A

notarized document includes one that is subscribed and sworn under oath or one
that contains a jurat. Acknowledgment is dierent. Acknowledgment refers to an
act in which an individual on a single occasion: (a) appears in person before the
notary public and presents an integrally complete instrument or document; (b) is
attested to be personally known to the notary public or identied by the notary
public through competent evidence of identity as dened by these Rules; and (c)
represents to the notary public that the signature on the instrument or document
was voluntarily axed by him for the purposes stated in the instrument or
document, declares that he has executed the instrument or document as his free
and voluntary act and deed, and, if he acts in a particular representative capacity,
that he has the authority to sign in that capacity. ( See Section 1, Rule II of 2004
Rules of Notarial Practice)
14.

The Code of Civil Procedure took effect on 1 September 1901.

15.

An Act amending section six hundred and eighteen of Act Numbered One
hundred and ninety, entitled "An Act providing A Code of Procedure in Civil Actions
and Special Proceedings in the Philippine Islands," prescribing additional
requirement in the execution of wills. It took effect on 1 July 1916.

16.

The validity of the execution of a will is governed by the statutes in the force at
the time of its execution (In re will of Riosa, 39 Phil. 23 [1918]). Article 795 of the
New Civil Code provides: "The validity of a will as to its form depends upon the
observance of the law in force at the time it is made."

17.

Section 617 governs wills executed by a Spaniard or a resident of the Philippine

Islands before Act No. 190 came into force on 1 September 1901.

18.

Rollo, p. 151.

19.

The New Civil Code took effect on 30 August 1950.

20.

TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 67 Vol. III (1998).

21.

Ibid., p. 101.

22.

FISHER, THE CIVIL CODE OF SPAIN, 198 (1921).

23.

Valera v. Purugganan, 4 Phil. 719 (1905).

24.

See Fernandez, et al. v. Dimagiba, 128 Phil. 450 (1967).

25.

Lopez v. Liboro, 81 Phil. 429 (1948).

26.

Ibid.

27.

TSN, 26 October 1989, p. 74.

28.

Exhibit "A," Folder.

29.

Article 809 of the New Civil Code provides:

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

pressure and inuence, 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.
30.

57 Phil. 437 (1932).

31.

40 Phil. 476 (1919).

32.

68 Phil. 745 (1939).

33.

Ibid.

34.

35.

Gil v. Murciano , Resolution on the Motion for Reconsideration, dated 20 March

1953, 88 Phil. 260 (1951). See also Caneda v. Court of Appeals , G.R. No. 103554,
28 May 1993, 222 SCRA 781, where the Court explained the extent and limits of
Article 809 of the New Civil Code.
Dichoso de Ticson v. De Gorostiza, supra, see note 31.

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 respondent.
SYLLABUS
1.
CIVIL LAW; SUCCESSION; WILL; DEFINED. A will has been dened 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 (Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code).
2.
ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. Under the Civil Code,
there are two kinds of wills which a testator may execute. The rst kind is the
ordinary or attested will, the execution of which is governed by Articles 804 to 809
of the Code. In addition to the requirements under Article 805, the ordinary will
must be acknowledged before a notary public by the testator and the attesting
witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will. Where
the testator is deaf or a deaf-mute, Article 807 requires that he must personally
read the will, if able to do so. Otherwise, he should designate two persons who will
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 (Art. 808, Civil Code). The other kind of will is the holographic
will, which Article 810 denes as one that is entirely written, dated, and signed by
the hand of the testator himself. This kind of will, unlike the ordinary type, requires
no attestation by witnesses. A common requirement in both kinds of wills is that
they should be in writing and must have been executed in a language or dialect
known to the testator (Art. 804, Civil Code).
3.
ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. 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
of the same (Testate Estate of Paula Toray, 87 Phil. 139 [1950]). It is a separate
memorandum or record of the facts surrounding the conduct of execution and once
signed by the witnesses, it gives armation to the fact that compliance with the
essential formalities required by law has been observed. (Vda. de Ramos, et al. vs.
Court of Appeals, et. al., 81 SCRA 393 [1978]). 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 (Leynez vs. Leynez, 68 Phil. 745
[1939]).
4.
ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, DIFFERENTIATED. It
will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" dier in meaning. Attestation is that act of the
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 identication (Hill vs. Davis, 167 P. 465,
466, 64 Okl. 253, L.R.A. 1918 B 687).
5.
ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. Under the third
paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will, should state (1) the number of 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 said witnesses also signed the will and every page thereof in the
presence of the testator and of one another. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages; (In the matter of the Estate of Sanguinsin, 41
Phil. 875 [1920]; In re Will of Andrada, 42 Phil. 180 [1921]) whereas the
subscription of the signatures of the testator and the attesting witnesses is made for
the purpose of authentication and identication, and thus indicates that the will is
the very same instrument executed by the testator and attested to by the
witnesses. (Testate Estate of Paula Toray, 87 Phil. 611 [1938]). Further, by
attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. (Gonzales vs. Gonzales
de Carungcong, 90 Phil. 444 [1951]). The attestation clause, therefore, provides
strong legal guaranties for the due execution of a will and to insure the authenticity
thereof ( Echevarria vs. Sarmiento, 66 Phil. 611 [1938]). As it appertains only to the
witnesses and not to the testator, it need be signed only by them (Abangan vs.
Abangan, 40 Phil. 476 [1919]). 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 the witnesses. (Cagro vs.
Cagro, 92 Phil. 1032 [1953]). I n Taboada vs. Rosal , (118 SCRA 195 [1982]), we

claried 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 identication 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.
6.
ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. 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 rst 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 nal
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 Article 809 of
the Civil Code. 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, the defect is not only in the form or the language of the attestation
clause but the total absence of a specic element required by Article 805 to be
specically 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 any statement, or an implication
thereof, that the attesting witnesses did actually bear witness to the signing by the
testator of the will and all 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.
7.
ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER ART. 809
OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. The rule on substantial
compliance in Article 809 cannot be invoked 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 with in the execution of the will. In
other words, the 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 only by extrinsic evidence
thereof, since an overall appreciation of the contents of the will yields no basis
whatsoever from which 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 indirection what in law he cannot do directly. 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.

DECISION
REGALADO, J :
p

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 led 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 or another. On May
29, 1980, the testator passed away before his petition could nally be heard by the
probate court. 3 On February 25, 1981, Benoni Cabrera, one of the legatees named
in the will, sought 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 for intestate proceedings 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 proceedings for the probate of the will had to be heard and resolved rst. On
March 26, 1984 the case was reraed 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 a 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, testied 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 inuenced in any way in the execution of his will. Labuca also testied 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 they 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 this 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 ling 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 nding 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 law." 9

Undaunted by said judgment of the probate court, petitioners elevated the case to
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 specically 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 substantially 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 testator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters on 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 sucient 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 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 the 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 nd the present petition to be meritorious, as we shall shortly hereafter explain,
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 dened 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 rst 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 shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
LLphil

If the attestation clause is in a language not known to the witnesses, it shall

be interpreted to them."

In addition, the ordinary will must be acknowledged before a notary public by the
testator and the attesting witnesses, 15 hence it is likewise known as a notarial will.
Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two persons
who will 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 denes as one that is
entirely written, dated, and signed by the hand of the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of wills 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 of 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 armation 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 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 said witnesses also signed the will and
every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or decrease in the pages; 23
whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identication, 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, provides 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 the
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:
cdll

"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 sucient 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 thereto. 3 0 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
letters on 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."

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" dier in meaning. Attestation is that act of the
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
I n Taboada vs. Rosal , 32 we claried 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
identication 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 specically state the fact that the
attesting witnesses witnessed 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 rst
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 nal 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.
cdll

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 inuence, 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" (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 witnesses axed
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 following comment of former Justice J.B.L. Reyes 34 regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
". . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized.
All these are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in the
probate proceedings ." (Emphasis ours.)

3.
We stress once more that under Article 809, the defects or 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 the language of the attestation clause but the total absence of a
specic element required by Article 805 to be specically 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 any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all 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.
cdphil

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked 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 with in the
execution of the will. In other words, the 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 only by extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from
which 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
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 advanced the liberal or substantial compliance rule. This was rst 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., 41 an d Nayve vs. Mojal, et al., 42 all adhered to this
position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases of In
the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca,
45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conicting 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:

LLjur

"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 state 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 rearm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided by casuistry of
the extreme type, it would be impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely on one, we arm. If
we rely on the other, we reverse.
"In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the rst 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 cases: 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 Gumbanclaricatory pronouncement, there were decisions of the

Court that once more appeared to revive the seeming diversity of view that was
earlier threshed out therein. The cases of Quinto vs. Morata, 49 Rodriguez vs. Alcala ,
50 Echevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the
ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena ,
54 De Ticson vs. De Gorostiza , 55 Sebastian vs. Panganiban , 56 Rodriguez vs. Yap , 57
Grey vs. Fabia , 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61
Sabado vs. Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and established a trend toward an application of
the liberal view.
The Code Commission, cognizant of such a conicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codication
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 inuence, 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 oer any
puzzle or diculty, 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 ll 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 connes, 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 and Nocon, JJ ., concur.

Footnotes
*

The rst name of this representative party petitioner is also spelled "Armistica" in

the corresponding allegation of the petition.

1.

Original Record, 1-3.

2.

Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.

3.

Original Record, 1-3, 7, 24, 32.

4.

Ibid., 32-34.

5.

Ibid., 68-69, 157.

6.

Ibid., 98, 116, 143, 148, 157-159.

7.

TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.

8.

TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-18.

9.

Original Record, 339-340; per Judge Francis J. Militante.

10.

Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno and Jaime D.
Lantin, concurring.

11.

Rollo, 9.

12.

Ibid., 33.

13.

Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.

14.

Report of the Code Commission, 103-105.

15.

Art. 806, Civil Code.

16.

Art. 808, id.

17.

Art. 804, id.

18.

3 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).

19.

Testate Estate of Paula Toray, 87 Phil. 139 (1950).

20.

Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).

21.

Leynez vs. Leynez, 68 Phil. 745 (1939).

22.

In re Estate of Neumark, 46 Phil. 841 (1923).

23.

In The Matter of the Estate of Sanguinsin, 41 Phil. 875 (1920); In re Will of

Andrada, 42 Phil. 180 (1921).

24.

Testate Estate of Paula Toray, supra.

25.

Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).

26.

Echevarria vs. Sarmiento, 66 Phil. 611 (1938).

27.

Abangan vs. Abangan, 40 Phil. 476 (1919).

28.

Cagro vs. Cagro, 92 Phil. 1032 (1953).

29.

Report of the Code Commission, 103.

30.

Exhibits C to C-18; Folder of Exhibits in Special Proceeding No. 3899-R, 7-9;

Original Record, 4-6.

31.

Hill vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A. 1918B 687.

32.

118 SCRA 195 (1982).

33.

Andalis vs. Pulgueras, 59 Phil. 643 (1934).

34.

Lawyer's Journal, November 30, 1950, 566, cited in Tolentino, op. cit. , supra,
note 17 at 111-112.

35.

Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50 Phil. 30
(1927); Quinto vs. Morata, 54 Phil. 481 (1930); Rodriguez vs. Alcala, 55 Phil. 150
(1930); Testate Estate of Paula Toray, supra; Gil vs. Marciano. 88 Phil. 261 (1951).

36.

40 Phil. 476 (1919).

37.

42 Phil. 145 (1921).

38.

43 Phil. 378 (1922).

39.

43 Phil. 494 (1922).

40.

45 Phil. 216 (1923).

41.

46 Phil. 922 (1924).

42.

47 Phil. 152 (1924).

43.

41 Phil. 875 (1920).

44.

42 Phil. 180 (1921).

45.

43 Phil. 405 (1922).

46.

46 Phil. 841 (1923).

47.

48 Phil. 506 (1925).

48.

50 Phil. 30 (1927).

49.

54 Phil. 481 (1930).

50.

55 Phil. 150 (1930).

51.

66 Phil. 611 (1933).

52.

87 Phil. 139 (1950).

53.

53 Phil. 104 (1929).

54.

56 Phil. 282 (1931).

55.

57 Phil. 437 (1932).

56.

59 Phil. 653 (1934).

57.

68 Phil. 126 (1939).

58.

68 Phil. 128 (1939).

59.

68 Phil. 745 (1939).

60.

70 Phil. 89 (1940).

61.

71 Phil. 561 (1940).

62.

72 Phil. 531 (1941).

63.

72 Phil. 546 (1941).

64.

81 Phil. 429 (1948).

65.

Report of the Code Commission, 104-105.

66.

88 Phil. 260, 281 (1951).

67.

Tolentino, op. cit., supra, note 17 at 111.

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, petitionerappellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees,
ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's petition for the
allowance of the holographic will of deceased Ricardo B. Bonilla on the
ground that the alleged photostatic copy of the will which was presented for
probate, cannot stand in lieu of the lost original, for the law regards the
document itself as the material proof of the authenticity of the said will,
citing the case of Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only
question is whether a holographic will which was lost or cannot be found can
be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's order of
dismissal, held that a photostatic or xerox copy of a lost or destroyed
holographic will may be admitted because the authenticity of the
handwriting of the deceased can he determined by the probate court, as
comparison can be made with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1.
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF;
DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic
wills is the allowance of the will by the Court after its due execution has been
proved.
2.
ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of
holographic wills may be uncontested or not. If uncontested, at least one identifying
witness is required and, if no witness is available, experts may be resorted to. If
contested, at least three identifying witnesses are required.
3.
ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR
DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will
has been lost or destroyed and no other copy is available, the will cannot be

probated because the best and only evidence is the handwriting of the testator in
said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will.
4.
ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED;
CASE AT BAR. A photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made with the standard writings of the testator.
In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no eect. The law regards the document itself
as material proof of authenticity." But, in Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting
of the deceased can be determined by the probate court.
DECISION
RELOVA, J :
p

This case was certied to this Tribunal by the Court of Appeals for nal
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant led a petition with the Court
of First Instance of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary in her favor.
The petition, docketed as Sp. Proc. No. 8432, was opposed by the
appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
"(1)
Appellant was estopped from claiming that the deceased
left a will by failing to produce the will within twenty days of the death of
the testator as required by Rule 75, section 2 of the Rules of Court:
"(2)
The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not intended to
take effect after death, and therefore it was not a will;
"(3)
The alleged holographic will itself, and not an alleged copy
thereof, must be produced, otherwise it would produce no eect, as
held in Gan v. Yap, 104 Phil. 509; and
"(4)
The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
"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 led 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 led an
opposition. On July 23, 1979, the court set aside its order of February
23, 1979 and dismissed the petition for the probate of the will of
Ricardo B. Bonilla. The court said:
'. . . It is our considered opinion that once the original copy
of the holographic will is lost, a copy thereof cannot stand in lieu
of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic wills the
law, it is reasonable to suppose, regards the document itself as
the material proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B. Bonilla
died on May 13, 1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located
shows to our mind that the decedent had discarded before his
death his allegedly missing Holographic Will.

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

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

THE LOWER COURT ERRED IN DISMISSING APPELLANT'S

The only question here is whether a holographic will which was lost or
can not be found can be proved by means of a photostatic copy. Pursuant to
Article 811 of the Civil Code, probate of holographic wills is the allowance of
the will by the court after its due execution has been proved. The probate
may be uncontested or not. If uncontested, at least one identifying witness is
required and, if no witness is available, experts may be resorted to. If
contested, at least three identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic
will may be allowed because comparison can be made with the standard
writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court
ruled that "the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall
produce no eect. 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.

FIRST DIVISION
[G.R. No. 123486. August 12, 1999.]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
EUFEMIA PATIGAS, respondents.

Amadeo D. Seno for petitioners.

Roderico C. Villaroya for private respondents.
SYNOPSIS
On April 6, 1990, respondents Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, being the devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. De Ramonal, led with the Regional Trial Court, Branch 18,
Misamis Oriental, a petition for probate of the said holographic will. On the other
hand, petitioners Eugenia Ramonal Codoy and Manuel Ramonal led an opposition
thereto, alleging that the holographic will was a forgery and that the same was
even illegible which gives an impression that a "third hand" of an interested party
other than the true hand of Matilde Seno Vda. De Ramonal executed the
holographic will. At the hearing, respondents presented six ordinary witnesses and
various documentary evidence. Petitioners, instead of presenting their evidence,
led a demurrer to evidence which the trial court granted. Respondents appealed,
and in support thereof, they once again reiterated the testimony of their ordinary
witnesses who testied as to the similarity, authenticity genuiness of the signature
of the deceased in the holographic will. On October 9, 1995, the Court of Appeals
rendered a decision which ruled that the appeal was meritorious.
TIAEac

Hence, this petition.

The Court ruled that from a visual examination of the holographic will the strokes
are dierent when compared with other documents written by the testator. The
signature of the testator in some of the disposition was not readable. There were
uneven strokes, retracing and erasures on the will. Comparing the signature in the
holographic will dated August 30, 1978, and the signatures in several documents
such as the application letter for pasture permit dated December 30, 1980, and a
letter dated June 16, 1978, the strokes were dierent. In the letters, there were
continuous ows of the strokes, evidencing that there was no hesitation in writing
unlike that of the holographic will. The Court, therefore, ruled that it cannot be
certain that the holographic will was in the handwriting of the deceased.
The decision appealed from was SET ASIDE. The records were ordered remanded to
the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition.

SYLLABUS
1.
CIVIL LAW; SUCCESSION; PROBATE OF HOLOGRAPHIC WILL; THREE
WITNESSES REQUIRED FOR A CONTESTED HOLOGRAPHIC WILL IS MANDATORY.
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. We
are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "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.
2.
ID.; ID.; ID.; ID.; PURPOSE; TO ELIMINATE POSSIBILITY OF FALSE DOCUMENT
BEING ADJUDGED AS WILL OF TESTATOR. In the case of Ajero vs. Court of
Appeals, 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.
3.
ID.; ID.; ID.; PURPOSE; TO GIVE EFFECT TO THE WISHES OF THE DECEASED.
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that they aim to prevent. In the case at bar, the goal to achieve is to give
eect to the wishes of the deceased and the evil to be prevented is the possibility
that unscrupulous individuals who for their benet will employ means to defeat the
wishes of the testator.
4.
ID.; ID.; ID.; HANDWRITING OF DECEASED IN HOLOGRAPHIC WILL CANNOT
BE ASCERTAINED; CASE AT BAR. A visual examination of the holographic will
convince us that the strokes are dierent 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 signatures in the holographic will dated August 30, 1978, and the
signatures in several documents such as the application letter for pasture permit
dated December 30, 1980, and a letter dated June 16, 1978, the strokes are
dierent. In the letters, there are continuous ows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the holographic will was in the handwriting by the deceased.
IHAcCS

DECISION

PARDO, J :
p

Before us is a petition for review on certiorari of the decision of the Court of Appeals
1 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 plainti has completed presentation of his evidence and the
defendant les a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plainti 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.
LLpr

"Wherefore, the order appealed from is REVERSED and judgment rendered

allowing the probate of the holographic will of the testator Matilde Seo Vda.
de Ramonal." 2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition
3

for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August
30, 1978, that there was no fraud, undue inuence, and duress employed in the
person of the testator, and the 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 led an opposition
5 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 the 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 inuence on the part of the
beneficiaries, or through fraud and trickery.
LLphil

Respondents presented six (6) witnesses and various documentary evidence.

Petitioners instead of presenting their evidence, led a demurrer 6 to evidence,
claiming that respondents failed to establish sucient 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 insuciency of evidence
and lack of merits." 7

On December 12, 1990, respondents led 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 led.
He produced and identied 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 produce

and identify the voter's adavit of the decedent. However, the voters' adavit was
not produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testied 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 with 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 the 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.
LibLex

Matilde Ramonal Binanay further testied 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 testied 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 intestate proceedings of her late
husband, as a result of which he is familiar with the handwriting of the latter. He
testied 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 fth witness presented was Mrs. Teresita Vedad , an employee of the
Department of Environment and Natural Resources, Region 10. She testied that
she processed the application of the deceased for pasture permit and was familiar
with the signature of the deceased, since the deceased signed documents in her
presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testied 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
testied that the signature appearing in the holographic will is the true and genuine
signature of Matilde Seo Vda. de Ramonal.
LLphil

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.
Josena Salcedo must be given 1,500 square meters at Pinikitan
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 decision 9 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
qualications is a matter beyond the control of the proponent. For it is not
merely a question of nding 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 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 qualied 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.
Cdpr

"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 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 ne, 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 eect. 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 oer 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 denitely and in no uncertain terms testied 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.
LLjur

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 prove that
the date, text, and signature on the holographic will were 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.
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 eect to the
wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benet 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.
LLpr

It will be noted that not all the witnesses presented by the respondents testied
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identied 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 voters' adavit, 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 that is a 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?
prcd

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 testied that at the 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.
Cdpr

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.
cdphil

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 identied 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?
LexLib

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
uid 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 testied 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 the market and
then to her transactions.

Q.
A.

What else? What services that you rendered?

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?
cdtai

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.
A.

Do you know Matilde Vda de Ramonal?

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?
LLphil

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.

xxx xxx xxx

27

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.
LLjur

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 denite 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.
LLpr

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.
LexLib

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 crossexamination 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
dierent 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
dierent. In the letters, there are continuous ows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the 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.
cdtai

No costs.
SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Footnotes
1.

In CA-G.R. CV No. 31365, promulgated on October 9, 1995, Justice Pedro A.

Ramirez, ponente, Justices Angelina Sandoval Gutierrez and Conrado M. Vasquez,
Jr., concurring, CA Rollo, pp. 83-92.

2.

Decision, Court of Appeals Records, pp. 83-93.

3.

Original Records, Petition, pp. 1-7.

4.

Ibid., p. 4.

5.

Original Record, Opposition, pp. 13-17.

6.

Demurrer to Evidence, pp. 140-155, October 13, 1990.

7.

Original Records, Order, p. 192.

8.

Ibid., Notice of Appeal (November 29, 1990), p. 194.

9.

Court of Appeals Rollo, Decision, pp. 83-92.

10.
11.

Ibid.
Pioneer Texturing Corporation vs. National Labor Relations Commission , 280
SCRA 806 (1997); see also Director of Lands vs. Court of Appeals , 276 SCRA 276
(1997); Cecilleville Realty and Service Corporation vs. Court of Appeals , 278 SCRA
819 (1997); Baranda vs. Gustilo, 165 SCRA 757 (1988).

12.

TSN, September 5, 1990, p. 23.

13.

Ibid., p. 24.

14.

TSN, September 5, 1990, pp. 24-26.

15.

Ibid., pp. 28-29.

16.

TSN, September 5, 1990, pp. 28-29.

17.

TSN, September 5, 1990, p. 48.

18.

TSN, September 5, 1990, p. 49.

19.

TSN, p. 62.

20.

TSN, pp. 58-59.

21.

TSN, pp. 64-66.

22.

TSN, September 27, 1990, pp. 145-147.

23.

TSN, p. 148.

24.

TSN, September 6, 1990, p. 74.

25.

Ibid.

26.

TSN, September 6, 1990, pp. 76-77.

27.

Ibid.

28.

TSN, September 6, 1990, pp. 79-80.

29.

TSN, pp. 80-82.

30.

TSN, September 6, 1990, pp. 83-84.

31.

Supra.

32.

236 SCRA 489 (1994).

33.

Original Record, Exhibit "S", p. 101.

34.

Ibid., Exhibit "T", p. 103.

35.

Ibid., Exhibit "V", p. 105.

SECOND DIVISION
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE
COURT OF APPEALS AND CLEMENTE SAND, respondents.
DECISION
PUNO, J :
p

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R.
CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
"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.
prLL

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was
of sound and disposing mind, not acting under duress, fraud or undue inuence, 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
inuence. 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
holographic will to probate. It found, inter alia:

court

admitted the

decedent's

"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 nds 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
dierent 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 identied 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 testatrix, (private
respondent) Clemente Sand himself has testied 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 sucient that the
testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix even had detailed
knowledge of the nature of her estate. She even identied the lot number
and square meters of the lots she had conveyed by will. The objects of her
bounty were likewise identied 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 sucient 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 sucient reason for the
disallowance of herein holographic will. While it was alleged that the said will
was procured by undue and improper pressure and inuence on the part of
the beneciary or of some other person, the evidence adduced have not

shown any instance where improper pressure or inuence was exerted on

the testatrix. (Private respondent) Clemente Sand has testied 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 testied to in Court, all show the unlikelihood of
her being unduly inuenced or improperly pressured to make the aforesaid
will. It must be noted that the undue inuence or improper pressure in
question herein only refer to the making of a will and not as to the specic
testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot nd
convincing reason for the disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to
probate." 3 (Emphasis omitted.)

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

It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations and
cancellations made thereon had not been authenticated by decedent.
llcd

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in
any of the following cases:
"(a)

If not executed and attested as required by law;

(b)
If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c)

If it was executed under duress, or the influence of fear, or threats;

(d)
If it was procured by undue and improper pressure and inuence, 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 xing
his signature thereto."

In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:
(1)

If the formalities required by law have not been complied with;

(2
If the testator was insane, or otherwise mentally incapable of making
a will, at the time of its execution;
(3)
If it was executed through force or under duress, or the inuence of
fear, or threats;
(4)
If it was procured by undue and improper pressure and inuence, on
the part of the beneficiary or of some other person;
(5)

If the signature of the testator was procured by fraud;

(6)
If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto."

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are:
(1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand
was not executed in accordance with the formalities prescribed by law. It held that
Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
cdrep

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"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 aects
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 eectuated. Such failure, however, does not render the
whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132
SCRA 237, 242 (1984), this Court held:
cdrep

"Ordinarily, when a number of erasures, corrections, and interlineations

made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most only
as respects the particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said 'la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made

on the date of the holographic will or on testator's signature, 9 their presence does
not invalidate the will itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity of
the holographic will (Article 810). The distinction can be traced to Articles 678 and
688 of the Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
"Article 678: A will is called holographic when the testator writes it himself in

the form and with the requisites required in Article 688.

"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.
"Foreigners may execute holographic wills in their own language."

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in
Articles 813 and 814 of the same Code are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety.
This is correct and must be affirmed.
LexLib

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

SO ORDERED.

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

Footnotes
1.

Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente),

Ricardo J. Francisco (chairman), and Pacita Canizares-Nye.

2.

Presided by Judge Felimon H. Mendoza.

3.

Rollo, pp. 37-39.

4.

Impugned Decision, p. 5; Rollo, p. 46.

5.

Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of
the Philippines Annotated (1989), pp. 145-146.

6.

See Montanano vs. Suesa, 14 Phil. 676 (1909).

7.

See Fernando vs. Villalon, 3 Phil. 386 (1904).

8.

See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme
Court of Spain, dated April 4, 1895; See also, 3 MANRESA, Commentarios al
ARTURO M. TOLENTINO, Commentaries & Jurisprudence on the Civil Code (1973),
p. 107, citing Castan 341, 5 Valverde 82; 3 AMBROSIO PADILLA, Civil Code
Annotated (1987), pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIOAQUINO (1990), p. 42.

9.

3 PARAS, op cit.

10.

It must be noted, however, that in Kalaw, this Court laid down an exception to
the general rule, when it invalidated the entire will because of an unauthenticated
erasure made by the testator. In that case, the will had only one substantial
provision. This was altered by substituting the original heir with another, with such
alteration being unauthenticated. This Court held that the whole will was void "for
the simple reason that nothing remains in the Will after (the provision is
invalidated) which could remain valid. To state that the Will as rst written should
be given ecacy is to disregard the seeming change of mind of the testatrix. But,
that change of mind can neither be given eect because she failed to authenticate
it in the manner required by law by affixing her full signature."

11.

Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid vs.
Nuguid, 17 SCRA 449 (1966); See also Cayetano vs. Leonidas, 129 SCRA 522
(1984).

FEDERICO AZ AOLA vs . CESARIO SINGSON

SECOND DIVISION
[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.
SYLLABUS
1.
WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF;
REQUISITE AS TO NUMBER OF WITNESSES. Since the authenticity of the
holographic will was not contested, proponent was not required to produce more
than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot 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, it becomes obvious that the existence of witnesses
possessing the requisite qualications is a matter beyond the control of the
proponent.
2.
ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE.
Where the will is holographic, no witness need be present and the rule
requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided.
3.
ID.; RESORT TO EXPERT EVIDENCE. Under Article 811, the resort
to expert evidence is conditioned by the words "if the Court deem it necessary",
which reveals that what the law deems essential is that the Court should be
convinced of the will's authenticity.
DECISION
REYES, J. B. L., J :
p

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):
"Briey 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 the deceased Cesario
Singson; that witness Francisco Azaola testied 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 testied 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 attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an adavit (Exh. G-2), and that there were
further exhibited in court two residence certicates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testied that the penmanship 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 armative
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 denitely 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 inuence 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 suciently
that the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: rst, 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 witness 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 witnesses possessing
the requisite qualications is a matter beyond the control of the proponent. For it is
not merely a question of nding 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 acquainted with 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 qualied 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. Delnado, 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 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 ne, 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, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely
remarks:
"La manera como est concebida la redaccin del ltimo apartado de
dicho precepto induce la conclusin 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 olgrafo, aunque ya estn
insertas en los autos del expediente las declaraciones testicales. La
prudencia con que el Juez debe de proceder en resoluciones de
transcendencia as lo exige, y la ndole delicada y peligrosa del testamento
olgrafo lo hace necesario para mayor garanta de todos los intereses
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una comrmacin
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 averiguar y declarar. Para eso se ha escrito la frase del citado ltimo
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 de formarse con independencia de
los sucesos y de su signicacin, para responder debidamente de las
resoluciones que haya de dictar."

And because the law leaves it to the trial court to decide if experts are still needed,
no unfavourable inference can be drawn from a party's failure to oer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
Our conclusion is that the rule of the rst paragraph of Article 811 of the Civil Code
is merely directory and is not mandatory.
Considering, however, that this is the rst 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, Concepcin, Barrera, and Gutirrez

David, JJ., concur.

SECOND DIVISION
[G.R. No. 138842. October 18, 2000.]
NATIVIDAD P. NAZARENO, MAXIMINO P. NAZARENO, JR.,
petitioners, vs. COURT OF APPEALS, ESTATE OF MAXIMINO A.
NAZARENO, SR., ROMEO P. NAZARENO and ELIZA NAZARENO,
respondents.
DECISION
MENDOZA, J :
p

This is a petition for review on certiorari of the decision 1 of the Court of Appeals in
CA-GR CV No. 39441 dated May 29, 1998 arming with modications the decision
of the Regional Trial Court, Branch 107, Quezon City, in an action for annulment of
sale and damages.
The facts are as follows:
Maximino Nazareno, Sr. and Aurea Poblete were husband and wife. Aurea died on
April 15, 1970, while Maximino, Sr. died on December 18, 1980. They had ve
children, namely, Natividad, Romeo, Jose, Pacico, and Maximino, Jr. Natividad and
Maximino, Jr. are the petitioners in this case, while the estate of Maximino, Sr.,
Romeo, and his wife Eliza Nazareno are the respondents.
During their marriage, Maximino Nazareno, Sr. and Aurea Poblete acquired
properties in Quezon City and in the Province of Cavite. It is the ownership of some
of these properties that is in question in this case.
It appears that after the death of Maximino, Sr., Romeo led an intestate case in
the Court of First Instance of Cavite, Branch XV, where the case was docketed as Sp.
Proc. No. NC-28. Upon the reorganization of the courts in 1983, the case was
transferred to the Regional Trial Court of Naic, Cavite. Romeo was appointed
administrator of his father's estate.
In the course of the intestate proceedings, Romeo discovered that his parents had
executed several deeds of sale conveying a number of real properties in favor of his
sister, Natividad. One of the deeds involved six lots in Quezon City which were
allegedly sold by Maximino, Sr., with the consent of Aurea, to Natividad on January
29, 1970 for the total amount of P47,800.00. The Deed of Absolute Sale reads as
follows:
DEED OF ABSOLUTE SALE
KNOW ALL MEN BY THESE PRESENTS:

I, MAXIMINO A. NAZARENO, Filipino, married to Aurea Poblete-Nazareno, of

legal age and a resident of the Mun. of Naic, Prov. of Cavite, Philippines,
-W I T N E S S E T HThat I am the absolute registered owner of six (6) parcels of land with the
improvements thereon situated in Quezon City, Philippines, which parcels of
land are herewith described and bounded as follows, to wit:

"TRANS. CERT. OF TITLE NO. 140946"

"A parcel of land (Lot 3-B of the subdivision plan Bsd-47404, being a portion
of Lot 3, Block D-3 described on plan Bsd-10642, G.L.R.O. Record No. )
situated in the Quirino District, Quezon City. Bounded on the N., along line 12 by Lot 15, Block D-3 of plan Bsd-10642; along line 2-3 by Lot 4, Block D-3
of plan Bsd-10642; along line 3-4 by Aurora Boulevard (Road Lot-1, Bsd10642); and along line 4-1 by Lot 3-D of the subdivision plan. Beginning at a
point marked "1" on plan, being S.29 deg. 26'E., 1156.22 m. from B.L.L.M. 9,
Quezon City,
thence N. 79 deg. 53'E., 12.50 m. to point 2;
thence S. 10 deg. 07'E., 40.00 m. to point 3;
thence S. 79 deg. 53'W., 12.50 m. to point 4;
thence N. 10 deg. 07'W., 40.00 m. to the point
of beginning; containing an area of FIVE HUNDRED (500) SQUARE METERS.
All points referred to are indicated on the plan and are marked on the
ground as follows: points "1" and "4" by P.L.S. Cyl. Conc. Mons. bearings
true; date of the original survey, April 8-July 15, 1920 and that of the
subdivision survey, March 25, 1956."

"TRANS. CERT. OF TITLE NO. 132019"

"A parcel of land (lot 3, Block 93 of the subdivision plan Psd-57970 being a
portion of Lot 6, Pcs-4786, G.L.R.O. Rec. No. 917) situated in Quirino
District Quezon City. Bounded on the NW., along line 1-2, by Lot 1, Block 93;
on the NE., along line 2-3, by Road Lot 101; on the SE., along line 3-4, by
Road Lot 100; on the SW., along line 4-1, by Lot 4, Block 93; all of the
subdivision plan. Beginning at point marked "1" on plan, being S. 65 deg. 40'
3339.92 m. from B.L.L.M. No. 1, Marikina, Rizal;
thence N. 23 deg. 28 min. E., 11.70 m. to point "2";
thence S. 66 deg. 32 min. E., 18.00 m. to point "3";
thence S. 23 deg. 28 min. W., 11.70 m. to point "4";
thence N. 66 deg. 32. min. W., 18.00 m. to the point

of beginning; containing an area of TWO HUNDRED TEN SQUARE METERS

AND SIXTY SQUARE DECIMETERS (210.60). All points referred to are
indicated on the plan and are marked on the ground by B.L. Cyl. Conc.
Mons. 15 x 60 cm.; bearings true; date of the original survey, Nov. 10, 1920
and Jan. 31-March 31, 1924 and that of the subdivision survey, February 1
to September 30, 1954. Date approved March 9, 1962."

"TRANS. CERT. OF TITLE NO. 118885"

"A parcel of land (Lot No. 10, of the consolidation and subdivision plan Pcs988, being a portion of the consolidated Lot No. 26, Block No. 6, Psd-127,
and Lots Nos. 27-A and 27-B, Psd- 14901, G.L.R.O. Record No. 917),
situated in the District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan; on the SE.,
by Lot No. 11 of the consolidation and subdivision plan; on the SW., by Lot
No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No.
9 of the consolidation and subdivision plan. Beginning at a point marked "1"
on the plan, being S. 7 deg. 26' W., 4269.90 m. more or less from B.L.L.M.
No. 1, Mp. of Mariquina;
thence S. 25 deg. 00'E., 12.00 m. to point "2";
thence S. S4 deg. 59'W., 29.99 m. to point "3";
thence N. 25 deg. 00'W., 12.00 m to point "4";
thence N. 64 deg. 59'E., 29.99 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS
(360), more or less. All points referred to are indicated on the plan and on
the ground are marked by P.L.S. Conc. Mons. 15 x 60 cm.; bearings true;
declination 0 deg. 50'E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to 26, 1941."

"TRANS. CERT. OF TITLE NO. 118886"

"A parcel of land (Lot No. 11, of the consolidation and subdivision; plan Pcs988, being a portion of the consolidated Lot No. 26, Block No. 6, Psd-127,
and Lots Nos. 27-A and 27-B, Psd-14901, G.L.R.O. Record No. 917),
situated in the District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan; on the SE.,
by Lot No. 12 of the consolidation and subdivision plan; on the SW., by Lot
No. 3 of the consolidation and subdivision plan; on the NW., by Lot No. 10 of
the consolidation and subdivision plan. Beginning at a point marked "1" on
plan, being S. 79 deg. 07'W., 4264.00 m. more or less from B.L.L.M. No. 1,
Mp. of Mariquina;
thence S. 64 deg. 59'W., 29.99 m. to point "2";
thence N. 25 deg. 00'W., 12.00 m. to point "3";
thence N. 64 deg. 59'E., 29.99 m. to point "4";

thence S. 26 deg. 00'E., 12.00 m. to the point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS
(360), more or less. All points referred to are indicated on the plan and on
the ground, are marked by P.L.S. Conc. Mons. 15 x 60 cm.; bearings true;
declination 0 deg. 50'E.; date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to 26, 1941."
"A parcel of land (Lot No. 13 of the consolidation and subdivision plan Pcs988, being a portion of the consolidated Lot No. 26, Block No. 6, Psd-127,
and Lots Nos. 27-A and 27-B, Psd-14901, G.L.R.O. Record No. 917),
situated in the District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan; on the SE.,
by Lot No. 14, of the consolidation, and subdivision plan; on the SW., by Lot
No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No.
12, of the consolidation and subdivision plan. Beginning at the point marked
"1" on plan, being S. 78 deg. 48' W., 4258.20 m. more or less from B.L.L.M.
No. 1, Mp. of Mariquina;
thence S. 64 deg. 58'W., 30.00 m. to point "2";
thence N. 25 deg. 00'W., 12.00 m. to point "3";
thence N. 64 deg. 59'E., 29.99 m. to point "4";
thence S.25 deg. 00'E., 12.00 m. to point of
beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS
(360, more or less. All points referred to are indicated on the plan and on
the ground are marked by P.L.S. Conc Mons. 15 x 60 cm.; bearings true;
declination 0 deg. 50'E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to 26, 1941."
"A parcel of land (Lot No. 14, of the consolidation and subdivision plan Pcs988, being a portion of the consolidated Lot No. 26, Block No. 6, Psd-127,
and Lots Nos. 27-A and 27-B, Psd-14901, G.L.R.O. Record No. 917),
situated in the District of Cubao, Quezon City, Island of Luzon. Bounded on
the NE., by Lot No. 4 of the consolidation and subdivision plan; on the SE.,
by Lot No. 15, of the consolidation and subdivision plan; on the SW., by Lot
No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No.
13 of the consolidation and subdivision plan. Beginning at the point marked
"1" on plan, being S.78 deg. 48' W., 4258.20 m. more or less from B.L.L.M.
No. 1, Mp. of Mariquina;
thence S. 25 deg. 00'E., 12.00 m. to point "2";
thence S. 65 deg. 00'W., 30.00 m. to point "3";
thence S. 65 deg. 00'W., 12.00 m. to point "4";
thence N. 64 deg. 58'E., 30.00 m. to the point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS

(360), more or less. All points referred to are indicated on the plan and on
the ground are marked by P.L.S. Conc. Mons. 15 x 60 cm.; bearings true;
declination 0 deg. 50'E., date of the original survey, April 8 to July 15, 1920,
and that of the consolidation and subdivision survey, April 24 to 26, 1941."
ADCETI

That for and in consideration of the sum of FORTY-THREE THOUSAND

PESOS (P43,000.00) PHILIPPINE CURRENCY, to me in hand paid by
NATIVIDAD P. NAZARENO, Filipino, single, of legal age and a resident of the
Mun. of Naic, Prov. of Cavite, Philippines, the receipt whereof is
acknowledged to my entire satisfaction, I do hereby CEDE, SELL, TRANSFER,
CONVEY and ASSIGN unto the said Natividad P. Nazareno, her heirs,
administrators and assigns, all my title, rights, interests and participations to
the above described parcels of land with the improvements thereon, with
the exception of LOT NO. 11 COVERED BY T.C.T. NO. 118886 , free of any
and all liens and encumbrances; and

That for and in consideration of the sum of FOUR THOUSAND EIGHT

HUNDRED PESOS (P4,800.00) PHILIPPINE CURRENCY, to me in hand paid
by NATIVIDAD P. NAZARENO, Filipino, single, of legal age and a resident of
the Mun. of Naic, Prov. of Cavite, Philippines, the receipt whereof is
acknowledged to my entire satisfaction, I do hereby CEDE, SELL, TRANSFER,
CONVEY and ASSIGN unto the said Natividad P. Nazareno, her heirs,
administrators and assigns, all my title, rights, interests and participations in
and to Lot No. 11 covered by T.C.T. No. 118886 above-described, free of
any and all liens and encumbrances, with the understanding that the title to
be issued in relation hereto shall be separate and distinct from the title to be
issued in connection with Lots Nos. 13 and 14, although covered by the
same title.
IN WITNESS WHEREOF, I have hereunto signed this deed of absolute sale in
the City of Manila, Philippines, this 29th day of January, 1970. 2

By virtue of this deed, transfer certicates of title were issued to Natividad, to wit:
TCT No. 162738 (Lot 3-B), 3 TCT No. 162739 (Lot 3), 4 TCT No. 162735 (Lot 10), 5
TCT No. 162736 (Lot 11), 6 and TCT No. 162737 (Lots 13 and 14), 7 all of the
Register of Deeds of Quezon City.
Among the lots covered by the above Deed of Sale is Lot 3-B which is registered
under TCT No. 140946. This lot had been occupied by Romeo, his wife Eliza, and by
Maximino, Jr. since 1969. Unknown to Romeo, Natividad sold Lot 3-B on July 31,
1982 to Maximino, Jr., 8 for which reason the latter was issued TCT No. 293701 by
the Register of Deeds of Quezon City. 9
When Romeo found out about the sale to Maximino, Jr., he and his wife Eliza locked
Maximino, Jr. out of the house. On August 4, 1983, Maximino, Jr. brought an action
for recovery of possession and damages with prayer for writs of preliminary
injunction and mandatory injunction with the Regional Trial Court of Quezon City.

On December 12, 1986, the trial court ruled in favor of Maximino, Jr. In CA-G.R. CV
No. 12932, the Court of Appeals affirmed the decision of the trial court. 10
On June 15, 1988, Romeo in turn led, on behalf of the estate of Maximino, Sr., the
present case for annulment of sale with damages against Natividad and Maximino,
Jr. The case was led in the Regional Trial Court of Quezon City, where it was
docketed as Civil Case No. 88-58. 11 Romeo sought the declaration of nullity of the
sale made on January 29, 1970 to Natividad and that made on July 31, 1982 to
Maximino, Jr. on the ground that both sales were void for lack of consideration.
On March 1, 1990, Natividad and Maximino, Jr. led a third-party complaint against
the spouses Romeo and Eliza. 12 They alleged that Lot 3, which was included in the
Deed of Absolute Sale of January 29, 1970 to Natividad, had been surreptitiously
appropriated by Romeo by securing for himself a new title (TCT No. 277968) in his
name. 13 They alleged that Lot 3 is being leased by the spouses Romeo and Eliza to
third persons. They therefore sought the annulment of the transfer to Romeo and
the cancellation of his title, the eviction of Romeo and his wife Eliza and all persons
claiming rights from Lot 3, and the payment of damages.
The issues having been joined, the case was set for trial. Romeo presented evidence
to show that Maximino and Aurea Nazareno never intended to sell the six lots to
Natividad and that Natividad was only to hold the said lots in trust for her siblings.
He presented the Deed of Partition and Distribution dated June 28, 1962 executed
by Maximino Sr. and Aurea and duly signed by all of their children, except Jose, who
was then abroad and was represented by their mother, Aurea. By virtue of this
deed, the nine lots subject of this Deed of Partition were assigned by rae as
follows:
1.

Romeo Lot 25-L (642 m2)

2.

Natividad Lots 23 (312 m2) and 24 (379 m2)

3.

Maximino, Jr. Lots 6 (338 m2) and 7 (338 m2)

4.

Pacifico Lots 13 (360 m2) and 14 (360 m2)

5.

Jose Lots 10 (360 m2) and 11 (360 m2)

Romeo received the title to Lot 25-L under his name, 14 while Maximino, Jr. received
Lots 6 and 7 through a Deed of Sale dated August 16, 1966 for the amount of
P9,500.00. 15 Pacico and Jose's shares were allegedly given to Natividad, who
agreed to give Lots 10 and 11 to Jose, in the event the latter came back from
abroad. Natividad's share, on the other hand, was sold to third persons 16 because
she allegedly did not like the location of the two lots. But, Romeo said, the money
realized from the sale was given to Natividad.
Romeo also testied that Lot 3-B was bought for him by his father, while Lot 3 was
sold to him for P7,000.00 by his parents on July 4, 1969. 17 However, he admitted
that a document was executed by his parents transferring six properties in Quezon
City, i.e., Lots 3, 3-B, 10, 11, 13, and 14, to Natividad.

Romeo further testied that, although the deeds of sale executed by his parents in
their favor stated that the sale was for a consideration, they never really paid any
amount for the supposed sale. The transfer was made in this manner in order to
avoid the payment of inheritance taxes. 18 Romeo denied stealing Lot 3 from his
sister but instead claimed that the title to said lot was given to him by Natividad in
1981 after their father died.
Natividad and Maximino, Jr. claimed that the Deed of Partition and Distribution
executed in 1962 was not really carried out. Instead, in December of 1969, their
parents oered to sell to them the six lots in Quezon City, i.e., Lots 3, 3-B, 10, 11,
13 and 14. However, it was only Natividad who bought the six properties because
she was the only one nancially able to do so. Natividad said she sold Lots 13 and
14 to Ros-Alva Marketing Corp. 19 and Lot 3-B to Maximino, Jr. for P175,000.00. 20
Natividad admitted that Romeo and the latter's wife were occupying Lot 3-B at that
time and that she did not tell the latter about the sale she had made to Maximino,
Jr.
Natividad said that she had the title to Lot 3 but it somehow got lost. She could not
get an original copy of the said title because the records of the Registrar of Deeds
had been destroyed by re. She claimed she was surprised to learn that Romeo was
able to obtain a title to Lot 3 in his name.
Natividad insisted that she paid the amount stated in the Deed of Absolute Sale
dated January 29, 1970. She alleged that their parents had sold these properties to
their children instead of merely giving the same to them in order to impose on
them the value of hardwork.
Natividad accused Romeo of ling this case to harass her after Romeo lost in the
action for recovery of possession (Civil Case No. Q-39018) which had been brought
against him by Maximino, Jr. It appears that before the case led by Romeo could be
decided, the Court of Appeals rendered a decision in CA-GR CV No. 12932 arming
the trial court's decision in favor of Maximino, Jr.
On August 10, 1992, the trial court rendered a decision, the dispositive portion of
which states:
WHEREFORE, judgment is hereby rendered declaring the nullity of the Deed
of Sale dated January 29, 1970. Except as to Lots 3, 3-B, 13 and 14 which
had passed on to third persons, the defendant Natividad shall hold the rest
in trust for Jose Nazareno to whom the same had been adjudicated. The
Register of Deeds of Quezon City is directed to annotate this judgment on
Transfer Certicate of Titles Nos. 162735 and 162736 as a lien in the titles of
Natividad P. Nazareno.
The defendants' counterclaim is
complaint is dismissed.

dismissed. Likewise, the third-party

The defendants are hereby directed to pay to the plainti jointly and
severally the sum of P30,000 as and for attorney's fees. Likewise, the thirdparty plainti is directed to pay the third-party defendant's attorney's fees of

P20,000.
All other claims by one party against the other are dismissed.
SO ORDERED.

21

Natividad and Maximino, Jr. led a motion for reconsideration. As a result, on

October 14, 1992 the trial court modified its decision as follows:
WHEREFORE, the plainti's Partial Motion for Reconsideration is hereby
granted. The judgment dated August 10, 1992 is hereby amended, such
that the rst paragraph of its dispositive portion is correspondingly modied
to read as follows:
"WHEREFORE, judgment is hereby rendered declaring the nullity of the
Deeds of Sale dated January 29, 1970 and July 31, 1982.
"Except as to Lots 3, 13 and 14 which had passed on to third person,
the defendant Natividad shall hold the rest OF THE PROPERTIES
COVERED BY THE DEED OF SALE DATED JANUARY 29, 1970 (LOTS 10
and 11) in trust for Jose Nazareno to whom the same had been
adjudicated.
"The Register of Deeds of Quezon City is directed to annotate this
judgment on Transfer Certificates of Title No. 162735 and 162736 as a
lien on the titles of Natividad P. Nazareno.
"LIKEWISE, THE SAID REGISTER OF DEEDS IS DIRECTED TO CANCEL
TCT NO. 293701 (formerly 162705) OVER LOT 3-B AND RESTORE TCT
NO. 140946 IN THE NAME OF MAXIMINO NAZARENO SR. AND AUREA
POBLETE." 22

On appeal to the Court of Appeals, the decision of the trial court was modied in the
sense that titles to Lot 3 (in the name of Romeo Nazareno) and Lot 3-B (in the
name of Maximino Nazareno, Jr.), as well as to Lots 10 and 11 were cancelled and
ordered restored to the estate of Maximino Nazareno, Sr. The dispositive portion of
the decision dated May 29, 1998 reads:
WHEREFORE, the appeal is GRANTED. The decision and the order in
question are modified as follows:
1.
The Deed of Absolute Sale dated 29 January 1970 and the Deed of
Absolute Sale dated 31 July 1982 are hereby declared null and void;
2.
Except as to Lots 13 and 14 ownership of which has passed on to
third persons, it is hereby declared that Lots 3, 3-B, 10 and 11 shall form
part of the estate of the deceased Maximino Nazareno, Sr.;
3.
The Register of Deeds of Quezon City is hereby ordered to restore
TCT No. 140946 (covering Lot 3-B), TCT No. 132019 (covering Lot 3), TCT
No. 118885 (covering Lot 10), and TCT No. 118886 (covering Lot 11). 23

Petitioners led a motion for reconsideration but it was denied in a resolution dated
May 27, 1999. Hence this petition.
TDSICH

Petitioners raise the following issues:

1.

WHETHER OR NOT THE UNCORROBORATED TESTIMONY OF PRIVATE

RESPONDENT ROMEO P. NAZARENO CAN DESTROY THE FULL FAITH
AND CREDIT ACCORDED TO NOTARIZED DOCUMENTS LIKE THE
DEED OF ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1)
EXECUTED BY THE DECEASED SPOUSES MAXIMINO A. NAZARENO,
SR. AND AUREA POBLETE IN FAVOR OF PETITIONER NATIVIDAD P.
NAZARENO.

2.

WHETHER OR NOT THE RESPONDENT COURT GROSSLY

MISAPPRECIATED THE FACTS OF THE CASE WITH RESPECT TO THE
VALIDITY OF THE SAID DEED OF ABSOLUTE SALE DATED JANUARY
29, 1970 (EXH. 1) IN THE LIGHT OF THE FOLLOWING:
A)

THE DOCUMENTARY EVIDENCE, ALL OF WHICH ARE

NOTARIZED, EXECUTED BY THE DECEASED SPOUSES DURING
THEIR LIFETIME INVOLVING SOME OF THEIR CONJUGAL
PROPERTIES.

B)

THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION WITH

WAIVER OF RIGHTS AND CONFIRMATION OF SALE DATED MAY
24, 1975 (EXH. 14A) OF THE ESTATE OF AUREA POBLETE BY
THE DECEASED MAXIMINO A. NAZARENO, SR. AND THEIR
CHILDREN INVOLVING THE ONLY REMAINING ESTATE OF
AUREA POBLETE THUS IMPLIEDLY ADMITTING THE VALIDITY OF
PREVIOUS DISPOSITIONS MADE BY SAID DECEASED SPOUSES
ON THEIR CONJUGAL PROPERTIES, HALF OF WHICH WOULD
HAVE BECOME A PART OF AUREA POBLETE'S ESTATE UPON
HER DEMISE.

C)

THE ADMISSION MADE BY MAXIMINO A. NAZARENO, SR. IN

HIS TESTIMONY IN OPEN COURT ON AUGUST 13, 1980 DURING
HIS LIFETIME IN CIVIL CASE NO. NC-712 (EXH. 81, 81B) THAT
HE HAD SOLD CERTAIN PROPERTIES IN FAVOR OF NATIVIDAD
P. NAZARENO THUS BELYING THE CLAIM OF ROMEO P.
NAZARENO THAT THE DEED OF ABSOLUTE SALE DATED
JANUARY 29, 1970 IS ONE AMONG THE DOCUMENTS
EXECUTED BY THE DECEASED SPOUSES TO BE WITHOUT
CONSIDERATION.

D)

THE ADMISSIONS MADE BY ROMEO P. NAZARENO HIMSELF

CONTAINED IN A FINAL DECISION OF THE RESPONDENT
COURT IN CA-GR CV NO. 12932 DATED AUGUST 31, 1992 AND
AN ANNEX APPEARING IN HIS ANSWER TO THE COMPLAINT IN
CIVIL CASE NO. Q-39018 (EXH. 11-B) INVOLVING LOT 3B, ONE

OF THE PROPERTIES IN QUESTION THAT THE SAID PROPERTY

IS OWNED BY PETITIONER NATIVIDAD P. NAZARENO.
E)

THE PARTIAL PROJECT OF PARTITION DATED MAY 24, 1995

WHICH WAS APPROVED BY THE INTESTATE COURT IN SP.
PROC. NO. NC-28 AND EXECUTED IN ACCORDANCE WITH THE
LATTER COURT'S FINAL ORDER DATED JULY 9, 1991
DETERMINING WHICH WERE THE REMAINING PROPERTIES OF
THE ESTATE.

3.

WHETHER OR NOT THE DEED OF ABSOLUTE SALE DATED JANUARY

29, 1970 EXECUTED BY THE DECEASED SPOUSES MAXIMINO A.
NAZARENO, SR. AND AUREA POBLETE DURING THEIR LIFETIME
INVOLVING THEIR CONJUGAL PROPERTIES IS AN INDIVISIBLE
CONTRACT? AND IF SO WHETHER OR NOT UPON THEIR DEATH, THE
ESTATE OF MAXIMINO A. NAZARENO, SR. ALONE CAN SEEK THE
ANNULMENT OF SAID SALE?

4.

WHETHER OR NOT THE SALE OF LOT 3 UNDER THE DEED OF

ABSOLUTE SALE DATED JANUARY 29, 1970 IN FAVOR OF PETITIONER
NATIVIDAD P. NAZARENO, IS VALID CONSIDERING THAT AS PER THE
ORDER OF THE LOWER COURT DATED NOVEMBER 21, 1990. ROMEO
NAZARENO ADMITTED THAT HE DID NOT PAY THE CONSIDERATION
STATED IN THE DEED OF ABSOLUTE SALE DATED JULY 4, 1969
EXECUTED BY THE DECEASED SPOUSES IN HIS FAVOR (EXH. M-2).

5.

WHETHER OR NOT AS A CONSEQUENCE, THE TITLE ISSUED IN THE

NAME OF ROMEO P. NAZARENO, TCT NO. 277968 (EXH. M) SHOULD
BE CANCELLED AND DECLARED NULL AND VOID AND A NEW ONE
ISSUED IN FAVOR OF NATIVIDAD P. NAZARENO PURSUANT TO THE
DEED OF ABSOLUTE SALE EXECUTED IN THE LATTER'S FAVOR ON
JANUARY 29, 1970 BY THE DECEASED SPOUSES. 24

We find the petition to be without merit.

First. Petitioners argue that the lone testimony of Romeo is insucient to overcome
the presumption of validity accorded to a notarized document.
To begin with, the ndings of fact of the Court of Appeals are conclusive on the
parties and carry even more weight when these coincide with the factual ndings of
the trial court. This Court will not weigh the evidence all over again unless there is a
showing that the ndings of the lower court are totally devoid of support or are
clearly erroneous so as to constitute serious abuse of discretion. 25 The lone
testimony of a witness, if credible, is sucient. In this case, the testimony of Romeo
that no consideration was ever paid for the sale of the six lots to Natividad was
found to be credible both by the trial court and by the Court of Appeals and it has
not been successfully rebutted by petitioners. We, therefore, have no reason to
overturn the findings by the two courts giving credence to his testimony.
The fact that the deed of sale was notarized is not a guarantee of the validity of its

contents. As held in Suntay v. Court of Appeals:

26

Though the notarization of the deed of sale in question vests in its favor the
presumption of regularity, it is not the intention nor the function of the
notary public to validate and make binding an instrument never, in the rst
place, intended to have any binding legal eect upon the parties thereto. The
intention of the parties still and always is the primary consideration in
determining the true nature of a contract.

Second. Petitioners make capital of the fact that in C.A.-G.R. CV No. 12932, which
was declared nal by this Court in G.R. No. 107684, the Court of Appeals upheld the
right of Maximino, Jr. to recover possession of Lot 3-B. In that case, the Court of
Appeals held:
As shown in the preceding disquisition, Natividad P. Nazareno acquired the
property in dispute by purchase in 1970. She was issued Transfer Certicate
of Title No. 162738 of the Registry of Deeds of Quezon City. When her
parents died, her mother Aurea Poblete-Nazareno in 1970 and her father
Maximino A. Nazareno, Sr. in 1980, Natividad P. Nazareno had long been the
exclusive owner of the property in question. There was no way therefore
that the aforesaid property could belong to the estate of the spouses
Maximino Nazareno, Sr. and Aurea Poblete. The mere fact that Romeo P.
Nazareno included the same property in an inventory of the properties of
the deceased Maximino A. Nazareno, Sr. will not adversely aect the
ownership of the said realty. Appellant Romeo P. Nazareno's suspicion that
his parents had entrusted all their assets under the care and in the name of
Natividad P. Nazareno, their eldest living sister who was still single, to be
divided upon their demise to all the compulsory heirs, has not progressed
beyond mere speculation. His barefaced allegation on the point not only is
without any corroboration but is even belied by documentary evidence. The
deed of absolute sale (Exhibit "B"), being a public document (Rule 132) Secs.
19 and 23 Revised Rules on Evidence), is entitled to great weight; to
contradict the same, there most be evidence that is clear, convincing and
more than merely preponderant (Yturralde vs. Aganon, 28 SCRA 407; Favor
vs. Court of Appeals , 194 SCRA 308). Defendants-appellants' own conduct
disproves their claim of co-ownership over the property in question. Being
themselves the owner of a ten-unit apartment building along Stanford St.,
Cubao, Quezon City, defendants-appellants, in a letter of demand to vacate
addressed to their tenants (Exhibits "P", "P-1" and "P-2") in said apartment,
admitted that the house and lot located at No. 979 Aurora Blvd., Quezon
City where they were residing did not belong to them. Also, when they
applied for a permit to repair the subject property in 1977) they stated that
the property belonged to and was registered in the name of Natividad P.
Nazareno. Among the documents submitted to support their application for
a building permit was a copy of TCT No. 162738 of the Registry of Deeds of
Quezon City in the name of Natividad Nazareno (Exhibit "O" and
submarkings; tsn, March 15, 1985, pp. 4-5). 27

To be sure, that case was for recovery of possession based on ownership of Lot 3-B.
The parties in that case were Maximino, Jr., as plainti, and the spouses Romeo and

Eliza, as defendants. On the other hand, the parties in the present case for
annulment of sale are the estate of Maximino, Sr., as plainti, and Natividad and
Maximino, Jr., as defendants. Romeo and Eliza were named third-party defendants
after a third-party complaint was led by Natividad and Maximino, Jr. As already
stated, however, this third-party complaint concerned Lot 3, and not Lot 3-B.
The estate of a deceased person is a juridical entity that has a personality of its own.
28 Though Romeo represented at one time the estate of Maximino, Sr., the latter
has a separate and distinct personality from the former. Hence, the judgment in CAGR CV No. 12932 regarding the ownership of Maximino, Jr. over Lot 3-B binds
Romeo and Eliza only, and not the estate of Maximino, Sr., which also has a right to
recover properties which were wrongfully disposed.
Furthermore, Natividad's title was clearly not an issue in the rst case. In other
words, the title to the other ve lots subject of the present deed of sale was not in
issue in that case. If the rst case resolved anything, it was the ownership of
Maximino, Jr. over Lot 3-B alone.

Third. Petitioners allege that, as shown by several deeds of sale executed by

Maximino, Sr. and Aurea during their lifetime, the intention to dispose of their real
properties is clear. Consequently, they argue that the Deed of Sale of January 29,
1970 should also be deemed valid.
This is a non-sequitur. The fact that other properties had allegedly been sold by the
spouses Maximino, Sr. and Aurea does not necessarily show that the Deed of Sale
made on January 29, 1970 is valid.
Romeo does not dispute that their parents had executed deeds of sale. The question,
however, is whether these sales were made for a consideration. The trial court and
the Court of Appeals found that the Nazareno spouses transferred their properties to
their children by fictitious sales in order to avoid the payment of inheritance taxes.
Indeed, it was found both by the trial court and by the Court of Appeals that
Natividad had no means to pay for the six lots subject of the Deed of Sale.

All these convince the Court that Natividad had no means to pay for all the
lots she purportedly purchased from her parents. What is more, Romeo's
admission that he did not pay for the transfer to him of Lots 3 and 25-L
despite the considerations stated in the deed of sale is a declaration against
interest and must ring with resounding truth. The question is, why should
Natividad be treated any dierently, i.e., with consideration for the sale to
her, when she is admittedly the closest to her parents and the one staying
with them and managing their affairs? It just seems without reason. Anyway,
the Court is convinced that the questioned Deed of Sale dated January 29,
1970 (Exh. "A" or "1") is simulated for lack of consideration, and therefore
ineffective and void. 29

In affirming this ruling, the Court of Appeals said:

Facts and circumstances indicate badges of a simulated sale which make the
Deed of Absolute Sale dated 29 January 1970 void and of no eect. In the
case of Suntay vs. Court of Appeals (251 SCRA 430 [1995]), the Supreme
Court held that badges of simulation make a deed of sale null and void since
parties thereto enter into a transaction to which they did not intend to be
legally bound.
It appears that it was the practice in the Nazareno family to make simulated
transfers of ownership of real properties to their children in order to avoid
the payment of inheritance taxes. Per the testimony of Romeo, he acquired
Lot 25-L from his parents through a ctitious or simulated sale wherein no
consideration was paid by him. He even truthfully admitted that the sale of
Lot 3 to him on 04 July 1969 (Deed of Absolute Sale, Records, Vol. II, p. 453)
likewise had no consideration. This document was signed by the spouses
Max, Sr. and Aurea as vendors while defendant-appellant Natividad signed as
witness. 30

Fourth. Petitioners argue further:

The Deed of Absolute Sale dated January 29, 1970 is an indivisible contract
founded on an indivisible obligation. As such, it being indivisible, it can not be
annulled by only one of them. And since this suit was led only by the estate
of Maximino A. Nazareno, Sr. without including the estate of Aurea Poblete,
the present suit must fail. The estate of Maximino A. Nazareno, Sr. can not
cause its annulment while its validity is sustained by the estate of Aurea
Poblete. 31

An obligation is indivisible when it cannot be validly performed in parts, whatever

may be the nature of the thing which is the object thereof. The indivisibility refers
to the prestation and not to the object thereof. 32 In the present case, the Deed of
Sale of January 29, 1970 supposedly conveyed the six lots to Natividad. The
obligation is clearly indivisible because the performance of the contract cannot be
done in parts, otherwise the value of what is transferred is diminished. Petitioners
are therefore mistaken in basing the indivisibility of a contract on the number of
obligors.
In any case, if petitioners' only point is that the estate of Maximino, Sr. alone
cannot contest the validity of the Deed of Sale because the estate of Aurea has not
yet been settled, the argument would nonetheless be without merit. The validity of
the contract can be questioned by anyone aected by it. 33 A void contract is
inexistent from the beginning. Hence, even if the estate of Maximino, Sr. alone
contests the validity of the sale, the outcome of the suit will bind the estate of
Aurea as if no sale took place at all.

Fifth. As to the third-party complaint concerning Lot 3, we nd that this has been
passed upon by the trial court and the Court of Appeals. As Romeo admitted, no
consideration was paid by him to his parents for the Deed of Sale. Therefore, the
sale was void for having been simulated. Natividad never acquired ownership over
the property because the Deed of Sale in her favor is also void for being without
consideration and title to Lot 3 cannot be issued in her name.

Nonetheless, it cannot be denied that Maximino, Sr. intended to give the six Quezon
City lots to Natividad. As Romeo testied, their parents executed the Deed of Sale in
favor of Natividad because the latter was the only "female and the only unmarried
member of the family." 34 She was thus entrusted with the real properties in behalf
of her siblings. As she herself admitted, she intended to convey Lots 10 and 11 to
Jose in the event the latter returned from abroad. There was thus an implied trust
constituted in her favor. Art. 1449 of the Civil Code states:
There is also an implied trust when a donation is made to a person but it
appears that although the legal estate is transmitted to the donee, he
nevertheless is either to have no beneficial interest or only a part thereof.

There being an implied trust, the lots in question are therefore subject to collation in
accordance with Art. 1061 which states:
Every compulsory heir, who succeeds with other compulsory heirs, must
bring into the mass of the estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be computed in
the determination of the legitime of each heir, and in the account of the
partition.

As held by the trial court, the sale of Lots 13 and 14 to Ros-Alva Marketing, Corp. on
April 20, 1979 35 will have to be upheld for Ros-Alva Marketing is an innocent
purchaser for value which relied on the title of Natividad. The rule is settled that
"every person dealing with registered land may safely rely on the correctness of the
certicate of title issued therefor and the law will in no way oblige him to go behind
the certificate to determine the condition of the property." 36
DHacTC

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Bellosillo, Quisumbing, and De Leon, Jr., JJ., concur.

Buena, J., Took no part.
Footnotes
1.

Per Justice Buenaventura J. Guerrero and concurred in by Justice Arturo B. Buena

(now Associate Justice of the Supreme Court) and Justice Portia AlioHormachuelos.

2.

Rollo, pp. 170-173.

3.

Records, p. 567.

4.

This was alleged by Natividad Nazareno in her third-party complaint. No copy of

the TCT was presented in court; Rollo, p. 55.

5.

Records, p. 563.

6.

Id., p. 564.

7.

Id., p. 565.

8.

Id., pp. 11-12.

9.

Id., p. 568.

10.

Rollo, p. 72.

11.

Id., p. 49.

12.

Id., p. 55.

13.

Records, p. 450.

14.

Id., p. 446.

15.

Rollo, pp. 165-166.

16.

Records, pp. 579-580.

17.

See Records, p. 453.

18.

TSN, pp. 31-32, April 10, 1991.

19.

Rollo, pp. 242-243.

20.

Records, pp. 11-12.

21.

Rollo, p. 104.

22.

Id., pp. 107-108.

23.

CA Decision, p. 17; Rollo, p. 142.

24.

Rollo, pp. 28-30.

25.

Fortune Motors (Phils.) Corp. v. Court of Appeals , 267 SCRA 653, 669 (1997).

26.

251 SCRA 430, 452 (1995).

27.

Rollo, pp. 82-83.

28.

Limjoco v. Intestate Estate of Fragante, 80 Phil. 776 (1948).

29.

Rollo, p. 103.

30.

Id., p. 140.

31.

Id., p.44.

32.

4 A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 254 (1991).

33.

Id., p. 632.

34.

Rollo, p. 94.

35.

Records, pp. 658-659.

36.

Cruz v. Court of Appeals , 281 SCRA 491, 496 (1997).

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.
SYLLABUS
1.
REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTIONS; COUPLE LIVING
TOGETHER AS HUSBAND AND WIFE FOR MANY YEARS, PRESUMED MARRIED. It
is true that Adelaido could not present his parents' marriage certicate 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.
2.
ID.; ID.; DOCUMENTARY EVIDENCE; BAPTISMAL CERTIFICATE NOT
CONCLUSIVE EVIDENCE OF FILIATION OF PETITIONER'S ALLEGED FATHER BUT
MAY BE CONSIDERED TO DETERMINE LATTER'S REAL IDENTITY. Although Jose
did present his parents' marriage certicate, Venancio was described therein as the
son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described
in Exhibit 4, his baptismal certicate, as the son of Magno Rivera. While we realize
that such baptismal certicate is not conclusive evidence of Venancio's liation
(which is not the issue here) it may nonetheless be considered to determine his real
identity.
3.
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; STRANGER HAS NO
PERSONALITY TO CONTEST SAID WILL. 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
eect 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.
DECISION
CRUZ, J :
p

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, led 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 led, 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 dierent 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 armed 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 certicate of the
couple, and Exhibit B, his own baptismal certicate where the couple was indicated
as his parents. The petitioner also presented Domingo Santos, who testied 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 certicate
because the record of marriages for 1942 in Mabalacat were destroyed when the
town was burned during the war, as certied by Exhibit 6. 7 He also submitted his
own birth certicate 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, armed 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 oered Venancio Rivera's baptismal certicate showing that his

parents were Magno Rivera and Gertrudes de los Reyes, 10 as contrasted with the
marriage certicate 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 certicate 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 certicate, Venancio
was described therein as the son of Florencio Rivera. Presumably, he was not the
same Venancio Rivera described in Exhibit 4, his baptismal certicate, as the son of
Magno Rivera. While we realize that such baptismal certicate is not conclusive
evidence of Venancio's liation (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 dierent 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 dicult 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 le 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.
Signicantly, 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
eort 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 nd 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 aw 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 eect 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, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1.

Original Records, Vol. I, pp. 11-13.

2.

Original Records, Vol. II, pp. 15-16.

3.

Record on Appeal, pp. 161-172.

4.

Coquia, J., ponente, with Castro-Bartolome and Jurado, JJ., concurring.

5.

TSN, March 18, 1982, pp. 18-21.

6.

Ibid., pp. 9-12.

7.

TSN, Dec. 2, 1982, pp. 20-21.

8.

Folder of Exhibits, pp. 10, 11, 13.

9.

TSN, Sept. 15, 1983, pp. 4-5, 15-25.

10.

TSN, Nov. 4, 1982, pp. 17-23.

11.

TSN, Dec. 2, 1982, pp. 9-15.

12.

Ibid., p. 7.

SECOND DIVISION
[G.R. Nos. 83843-44. April 5, 1990.]
IN THE MATTER OF THE
MELECIO
LABRADOR.
substituted by ROSITA
CRISTOBAL LABRADOR,
A PPE A L S , 1 GAUDENCIO
respondents-appellees.

PETITION TO APPROVE THE WILL OF

SAGRADO
LABRADOR
(Deceased),
LABRADOR, ENRICA LABRADOR, and
petitioners-appellants, vs. COURT OF
LABRADOR, and JESUS LABRADOR,

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.
SYLLABUS
1.
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; DATE MUST BE IN THE WILL
ITSELF AND EXECUTED IN THE HANDS OF THE TESTATOR. The will has been
dated in the hand of the testator himself in perfect compliance with Article 810. It is
worthy of note to quote the rst 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 shpond, 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." 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.
2.
ID.; ID.; ID.; ID.; CONSTRUED IN CASE AT BAR. Respondents claim that the
date 17 March 1968 in the will was when the testator and his beneciaries entered
into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said shpond," and was not the date of execution of
the holographic will; hence, the will is more of an "agreement" between the
testator and the beneciaries thereof to the prejudice of other compulsory heirs like
the respondents. This was thus a failure to comply with Article 783 which denes 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 eect 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.
3.
ID.; ID.; HEIR REDEEMING A PROPERTY ILLEGALLY SOLD; ENTITLED TO
REIMBURSEMENT. Anent the second issue of nding the reimbursement of the
P5,000 representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property (shpond) 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.
DECISION
PARAS, J :
p

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 810 2 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
Certicate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica,
Cristobal, Jesus, Gaudencio, Josena, 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, led 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.
prLL

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

substituted by his heirs), and Gaudencio Labrador led 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 led, 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 plainti-petitioner Sagrado with legal interest
thereon from December 20, 1976, when it was paid to vendee a retro.
cdll

Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modied said joint decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING
THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR
MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE
LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:
"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO
LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property
and assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the
boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time
for me to partition the shponds which were and had been bought or

acquired by us, meaning with their two mothers, hence there shall be no
dierences 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 dierences among the brothers and sisters.
llcd

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 shpond, 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 nal disposition that I am making in writing and it is this that
should be followed and complied with in order that any dierences 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 beneted 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 note to quote the rst 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 shpond, 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." (italics 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 beneciaries entered into an agreement among themselves about "the
partitioning and assigning the respective assignments of the said shpond," and was
not the date of execution of the holographic will; hence, the will is more of an
"agreement" between the testator and the beneciaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which denes 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 (shpond) 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 :
p

This is a petition for certiorari 1 with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullication
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 led 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.
Seangio-Santos as special administrator and guardian ad litem of petitioner Dy
Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command
of her faculties; 2) the deceased Segundo executed a general power of attorney in
favor of Virginia giving her the power to manage and exercise control and
supervision over his business in the Philippines; 3) Virginia is the most competent
and qualied to serve as the administrator of the estate of Segundo because she is a
certied 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 led by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP.
Proc. No. 98-90870 because testate proceedings take precedence and enjoy priority
over intestate proceedings. 2
The document that petitioners refer to as Segundo's holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St.,
Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay
tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay
kong anak na si 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.
IaEScC

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa
China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng
babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at
stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga
custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng
anak ko si Virginia.
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
Unang Saksi
(signed)

(signed)

ikalawang saksi

ikatlong saksi

On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc.
No. 99-93396 were consolidated. 4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings 5 primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the denition 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 led their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of
the extrinsic validity of the will; 2) private respondents question the intrinsic and
not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does not apply because
Segundo's will does not constitute a universal heir or heirs to the exclusion of one or
more compulsory heirs. 6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs
mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted,
Article 854 of the New Civil Code thus applies. However, insofar as the
widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not
being a compulsory heir in the direct line.
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, eort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions before the extrinsic validity of
the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is
hereby DENIED for lack of merit. Special Proceedings No. 99-93396 is

hereby DISMISSED without pronouncement as to costs.

SO ORDERED.

aDHCEA

Petitioners' motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH
LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B"
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3
AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE
FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT
OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE
ALLEGED GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATOR'S TESTAMENTARY CAPACITY AND
THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY
LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR'S WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY
AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS
IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE
PROCEEDINGS
TAKE
PRECEDENCE
OVER
INTESTATE
PROCEEDINGS.

Petitioners argue, as follows:

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) x the time and place for
proving the will when all concerned may appear to contest the allowance thereof,

and cause notice of such time and place to be published three weeks successively
previous to the appointed time in a newspaper of general circulation; and, b) cause
the mailing of said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana , simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedent's
will and the holographic will on its face is not intrinsically void;

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

The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana , unmistakably showed
Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for
the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be eected through a will wherein the legal cause therefor shall be specied.
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 sucient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919.
The following shall be sucient 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

inuence causes the testator to make a will or to change one already
made;

(5)

A refusal without justiable cause to support the parents or

ascendant who disinherit such child or descendant;

(6)

Maltreatment of the testator by word or deed, by the child or

descendant; 8

(7)

When a child or descendant leads a dishonorable or disgraceful life;

(8)

Conviction of a crime which carries with it the penalty of civil

interdiction.

Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.
Segundo's document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose
mortis causa 9 can be clearly deduced from the terms of the instrument, and while it
does not make an armative disposition of the latter's property, the disinheritance
of Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator Segundo in
favor of those who would succeed in the absence of Alfredo. 10
Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of construction are designed to ascertain
and give eect to that intention. It is only when the intention of the testator is
contrary to law, morals, or public policy that it cannot be given effect. 11
Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the
ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator. 12 In this regard, the
Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis
ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the

will is probated, 13 the disinheritance cannot be given effect. 14

With regard to the issue on preterition, 15 the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Court's opinion,
Segundo's last expression to bequeath his estate to all his compulsory heirs, with
the sole exception of Alfredo. Also, Segundo did not institute an heir 16 to the
exclusion of his other compulsory heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.
HSEIAT

Considering that the questioned document is Segundo's holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed
with. Article 838 of the Civil Code provides that no will shall pass either real or
personal property unless it is proved 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.

Puno, Sandoval-Gutierrez, Corona and Garcia, JJ., concur.

Footnotes
1.

Under Rule 65 of the Rules of Court.

2.

Records, p. 20.

3.

Id. at 17.

4.

Id. at 63.

5.

Id. at 65.

6.

Id. at 82.

7.

Id. at 96.

8.

Emphasis supplied.

9.

Article 783 of the Civil Code states: "A will is 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."

10.

Tolentino, Arturo M., "Commentaries and Jurisprudence on the Civil Code of the
Philippines," Volume III, p. 30.

11.

Id. at 38.

12.

Id. at 37-39.

13.

14.
15.

In a petition to admit a holographic will to probate, the only issues to be resolved

are: 1) whether the instrument submitted is, indeed, the decedent's last will and
testament; 2) whether said will was executed in accordance with the formalities
prescribed by law; 3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, 4) whether the execution of the will
and its signing were the voluntary acts of the decedents. 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 circumstances, courts are not
powerless to do what the situation constrains them to do, and pass upon certain
provisions of the will (Ajero v. Court of Appeals , G.R. No. 106720, September 15,
1994, 236 SCRA 488).

Supra note 10.

Article 854 of the Civil Code states: "The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devisees and legacies shall be valid insofar as they are
not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation."

16.

Article 841 of the Civil Code states: "A will is valid even though it should not
contain an institution of an heir, or such institution should not comprise the entire
estate, and even though the person so instituted should not accept the inheritance
or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall
be complied with and the remainder of the estate shall pass to the legal heirs."

17.

Maninang v. Court of Appeals , No. L-57848, June 19, 1982, 114 SCRA 478.

18.

Cuenco v. Court of Appeals , No. L-24742, October 26, 1973, 53 SCRA 360.

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 :
p

The parcel of agricultural land subject of the present controversy contains 1.8144
hectares, identied as Lot 1849 (the lot), and situated in Barangay Valle, Talavera,
Nueva Ecija.
A Certicate of Land Ownership Award (CLOA) was issued to Cristobal Olar (Olar)
covering the lot on account of which he was issued Transfer Certicate 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 le a Petition for Recovery
of Possession and Payment of Back Rentals 3 against petitioners before the
Department of Agrarian Reform Adjudication Board (DARAB) Regional Oce in
Talavera, Nueva Ecija, docketed as DARAB Case No. 5987'NNE'96.
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 Patunay 6 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.
ATcaEH

While respondents' petition in DARAB Case No. 5987'NNE'96 was pending before
the Provincial Agrarian Reform Adjudicator (PARAD), petitioners led before the
Municipal Agrarian Reform Ocer (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-beneciaries as shown by, among other
things, the "Waiver of Rights" executed by Olar.
By Decision 7 dated August 20, 1997 which jointly resolved DARAB Case Nos.
5987'NNE'96 and 6261'NNE'97, the PARAD ruled in favor of petitioners, the
decretal portion of which reads:
WHEREFORE, premises considered,
ORDERING AND DECLARING
1.

judgment

is

hereby

rendered:

DARAB Case No. 5987'NNE'96 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 Decision 10 of December 29, 2003, the DARAB set aside the PARAD's 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. 6261'NNE'97 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]
AaDSEC

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.
6261'NNE'97. 12

By the challenged Decision of November 23, 2004, 13 the appellate court armed 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 Olar's 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: ". . .; 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 . . . ."
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 beneciary was

passed unto the Capitles, thereby rendering ineective the certication
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 eect, 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
Olar's landholding after him. Besides which, there was nothing amiss with
the DARAB's ruling relative to the issuance of the Certicate of Land
Ownership Award to Cristobal Olar, as this was done in the regular course
of an ocial function. It simply established the fact that petitionersappellants' 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/certications. On the
other hand, Cristobal Olar's 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 son's
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 Olar's relationship with Cristobal Olar was in this
case never put in issue, their being legal heirs of the deceased gave them
unqualied right to participate in all proceedings aecting the subject
property.
What is more, as shown in the records, the respondent in DARAB Case No.
6261'NN[']97 was the MARO OF TALAVERA, N.E. Private respondentsappellees 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 beneted or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Tested by this criterion, Fortunata
Elbambuena's 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 Olar's "Waiver of Rights," Board Resolution of the Samahang
Nayon of Valle naming petitioners as new allocatee, Joint Certication of the BARC
Chairman and barangay chairman, and MARO Certication 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 Olar's 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 qualied to become farmerbeneciaries under the CARP as they did not till or cultivate the property nor help
Olar in his farming activities.
ETDAaC

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 ocers 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.
Qualied Beneciaries. 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 qualied 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.

Beneciaries under Presidential Decree No. 27 who have culpably sold,

disposed of, or abandoned their land are disqualied to become beneciaries
under this Program.
A basic qualication of a beneciary 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
beneciary, so that any beneciary guilty of negligence or misuse of the land
or any support extended to him shall forfeit his right to continue as such
beneciary. The DAR shall submit reports on the performance of the
beneficiaries to the PARC.
xxx xxx xxx

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 disqualication of a
surviving spouse as an heir of the deceased spouse. 16 Rosalinda, on the other hand,
is the surviving spouse of Olar's son. The two are thus real parties-in-interest who
stand to be injured or beneted by the judgment on the cancellation of the CLOA
issued in Olar's name. 17
WHEREFORE, the petition is DENIED.
Costs against petitioners.
SO ORDERED.

Quisumbing, Carpio, Tinga and Velasco, Jr., JJ., concur.

Footnotes
1.

Department of Agrarian Reform Adjudication Board (DARAB) records, p. 2. (The

DARAB records are paginated from pp. 192-1).

2.

Id. at 16.

3.

Id. at 6-3.

4.

Id. at 94.

5.

Id. at 26.

6.

Id. at 25.

7.

Id. at 103-99.

8.

Id. at 99.

9.

Id. at 120.

10.

Id. at 177-170.

11.

Id. at 171-170.

12.

Court of Appeals (CA) rollo, pp. 8-9.

13.

CA rollo, pp. 136-146. Penned by Court of Appeals Associate Justice Renato C.

Dacudao, with the concurrence of Justices Edgardo F. Sundiam and Japar B.
Dimaampao.

14.

Id. at 143-145.

15.

Rollo, p. 17.

16.
17.

Baritua v. Court of Appeals , G.R. No. 82233, March 22, 1990, 183 SCRA 565,
570.
De Leon v. CA, 343 Phil. 254, 265 (1997).

SECOND DIVISION
[G.R. No. 145545. June 30, 2008.]
PAZ SAMANIEGO-CELADA , petitioner, vs. LUCIA D. ABENA,
respondent.
DECISION
QUISUMBING, J :
p

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure
seeking to reverse the Decision 1 dated October 13, 2000 of the Court of Appeals in
CA-G.R. CV No. 41756, which armed the Decision 2 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 rst cousin of decedent Margarita S.
Mayores (Margarita) while respondent was the decedent's lifelong companion since
1929.
CTAIDE

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 rst cousins Catalina Samaniego-Bombay, Manuelita Samaniego Sajonia,
Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament 3 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 Certicate 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.
HacADE

On August 11, 1987, petitioner led 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 led 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.
IAETSC

So ordered.

Petitioner appealed the RTC decision to the Court of Appeals. But the Court of
Appeals, in a decision dated October 13, 2000, armed 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.

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
HSaIDc

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

Briey 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 inuence 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.
cCaSHA

Petitioner, in her Memorandum, 7 argues that Margarita's will failed to comply with
the formalities required under Article 805 8 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 aected her freedom and
willpower to decide on her own. Petitioner thus concludes that Margarita's 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 1009 9 and 1010 10 of the Civil Code.
HaTAEc

Respondent, for her part, argues in her Memorandum 11 that the petition for review
raises questions of fact, not of law and as a rule, ndings of fact of the Court of
Appeals are nal 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 ndings of the trial court that the formalities required by law were
duly complied with. The Court of Appeals also concurred with the ndings 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 nd 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 inuence 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 1 12 of Rule 45 limits this Court's
review to questions of law only.
THaDEA

Well-settled is the rule that the Supreme Court is not a trier of facts. When
supported by substantial evidence, the ndings 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 nding 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 ndings, went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee;
CcTHaD

(7)

When the findings are contrary to those of the trial court;

(8)

When the ndings of fact are conclusions without citation of specic

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 ndings of fact of the Court of Appeals are premised on

the supposed absence of evidence and contradicted by the evidence
on record. 13
STcHEI

We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the ndings of the RTC as upheld by the Court of Appeals,
reveal that petitioner's 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, testied 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 oppositor's 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.

aHECST

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 sucient 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 inuence, 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 axed on dierent occasions based on their
observation that the signature on the rst page is allegedly dierent 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 axing her signature in the presence of the instrumental
witnesses and the notary. There is no evidence to show that the rst
signature was procured earlier than February 2, 1987.
cTEICD

Finally, the court nds that no pressure nor undue inuence 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 ne, the court nds 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).
IcDCaT

Thus, we nd no reason to disturb the abovementioned ndings of the RTC. Since,

petitioner and her siblings are not compulsory heirs of the decedent under Article
887 15 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 decedent's 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.
HASDcC

Costs against petitioner.

SO ORDERED.

Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ., concur.

Footnotes
1.

Rollo, pp. 41-48. Penned by Associate Justice Jose L. Sabio, Jr., with Associate
Justices Salvador J. Valdez, Jr. and Eliezer R. delos Santos concurring.

2.

Id. at 34-40. Penned by Judge Eriberto U. Rosario, Jr.

3.

Id. at 31-33.

4.

Id. at 40.

5.

Id. at 47.

6.

Id. at 85.

7.

Id. at 82-102.

8.

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence
of the instrumental witnesses, and that the latter witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another.
DScTaC

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.
9.

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.
10.

Art. 1010. The right to inherit ab intestato shall not extend beyond the fth
degree of relationship in the collateral line.
DcCASI

11.
12.

Rollo, pp. 108-111.

SECTION 1. Filing of petition with Supreme Court . A party desiring to appeal by
certiorari from a judgment or nal order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may le with the Supreme Court a veried petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly set forth.
HaTDAE

13.

Ontimare, Jr. v. Elep, G.R. No. 159224, January 20, 2006, 479 SCRA 257, 265.

14.

Rollo, pp. 38-40.

15.

Art. 887. The following are compulsory heirs:

(1)
Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
(2)
In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants;
THcaDA

(3)

The widow or widower;

(4)

Acknowledged natural children, and natural children by legal fiction;

(5)

Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.