ART. 806 G.R. No. 122880 April 12, 2006 FELIX AZUELA, Petitioner, vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents. The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a merejurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy. The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones; Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAÑO address: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981. Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.)PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKOPage No. 86 ; Until Dec. 31, 1981

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Book No. 43 ; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81 The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the

testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi": "Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito." The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect. As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8 The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10 Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely

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directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11 The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets

such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16 The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18 Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will: "x x x The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if

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this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written,however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) (Underscoring supplied) In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: "x x x We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied). However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.21 Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25 Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded. Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will

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itself."31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.32 The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation inSingson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses

on the left-hand margin."37 While three (3) Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.39 The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into

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writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal

safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

G.R. No. L-20357 November 25, 1967 IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant, vs.FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG,

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VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees. This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a notary public, as required by law. On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the same year, appellant filed a petition with the above named court for the probate of said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay, appellees herein, opposed the petition on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the alleged execution of said will. After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil Code — that the will must be acknowledged before a notary public by the testator and the witnesses. An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by the testator but not by the instrumental witnesses. Article 806 of the New Civil Code reads as follows:

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.

We have held heretofore that compliance with the requirement contained in the above legal provision to the effect that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not comply with this requirement, it is obvious that the same may not be probated. WHEREFORE, the decision appealed from is affirmed, with costs.

G.R. No. L-7179 June 30, 1955 Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, vs.DOÑA MATEA LEDESMA, oppositor-appellant. By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits D and E, as the testament and

codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos. Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution. The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers. Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts,

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p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased. Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests. The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870). At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil.

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

G.R. No. L-32213 November 26, 1973 AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents. Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course. The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.

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Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

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

purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted. Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledgingwitnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed. FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

G.R. No. L-37453 May 25, 1979 RIZALINA GABRIEL GONZALES, petitioner, vs.HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents. This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. * It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the

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Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix. There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the deceased at the latters residence prior an- d up to the time of her death. The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found on page four, reads as follows: PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left

margin of all the other pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page. The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned. The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative 2. that the same was not executed and attested as required by law; 3. that, at the time of the alleged execution of the purported wilt the decedent lacked testamentary capacity due to old age and sickness; and in the second alternative 4. That the purported WW was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds: 1. That there is no iota of evidence to support the contentio that the purported will of the deceased was procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her benefit; 2. That there is insufficient evidence to sustain the contention that at the time of

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the alleged execution of the purported will, the deceased lacked testamentary capacity due to old age and sickness; 3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law; 4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting witnesses on April 15, 1961. WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holding that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law, hence allow ed probate. Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig and testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions, that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other. The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of record, There is no reason to alter the findings of fact in the decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on November 26, 1973, 9the question raised being factual and for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence. Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition. The petitioner in her brief makes the following assignment of errors: I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible witness II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the win Exhibit "F", was unexpected and coincidental. III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F". IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion. V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso. VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya. VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the win was improperly executed. VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in rejecting said testimonies.

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IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision. X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel. It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: ... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent reversal of its findings of fact ... Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly because its premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We have thus stated above is not without some recognized exceptions. Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors. Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as

required by law when there was absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well- known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs with respect to the qualifications of witnesses. We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines, (2) Those who have been convicted of falsification of a document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and

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uprightness, because such attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party. We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must be supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended). In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines. In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write. It is true that under Article 805 of the New Civil Code, 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, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and employee much less the humble or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788). Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay. " emphasissupplied). In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340). As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95

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A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341). Expression 'credible witness' in relation to attestation of wins means 'competent witness that is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342) The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the timr it is offered for probate,Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.) Credible witnesses as used in the statute relating to wills, means competent witnesses — that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case ofVda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established

otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that they have a good standing in the community and reputed to be trustworthy and reliable. Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed, and in holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained away. Since the above errors are factual We must repeat what We have previously laid down that the findings of fact of the appellate court are binding and controlling which We cannot review, subject to certain exceptions which We win consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the win and that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which

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testimonies are recited in the respondent Court's decision. The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in these facts and that the securing of these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will. We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office. It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself." As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit ' L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was given immediately to Atty.

Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961. But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document executed and attested through the intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar. Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion merits Our approval because tills conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso. " It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and review, We

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nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting witnesses and the notary public himself. Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not have been present to witness the will on that — day is purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal." In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very

purpose of the attestation clause which 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 in the memory of the subscribing witnesses, or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue importance to the picture-takings as proof that the win was improperly executed, We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The trial court gave undue importance to the picture takings, jumping therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous." Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal requisites for the execution or probate of a will. Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will was typewritten but which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza

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when actually it was Benjamin Cifra, Jr.— these are indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and coinciding with each other with regard to details of an incident and that witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. In as much as not all those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should not agree in the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429). It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support the conclusion of the court a quo that the will signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of

Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in question."

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It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with the evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was of sound disposing memory when she executed her will. Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967). Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or reservation. The above holding simply synthesize the resolutions we have heretofore made in respect ' to petitioner's previous assignments of error and to which We have disagreed and, therefore, rejected. The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent

Court acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel. We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present. Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses who constitute the best evidence of the will making have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner. SO ORDERED.

ART. 808 and 809 G.R. No. 74695 September 14, 1993 In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,

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Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents. Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado. On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz, Laguna. As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished them. Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies. A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick. When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal

was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied. On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will was served. The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article complied with? Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977. The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8 On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since

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the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with. We agree with petitioner in this respect. Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him. The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions. That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires. Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido,

probate of the latter's will and codicil should have been disallowed. We sustain private respondent's stand and necessarily, the petition must be denied. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14 In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15 Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17 As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the

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Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served. WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against petitioner. SO ORDERED.

G.R. No. 103554 May 28, 1993 TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners, vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents. Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the

requirements of Article 805, in relation to Article 809, of the Civil Code. The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2 Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4 Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate. 5 Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6 In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the

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testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7 On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then. 8 On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors. All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their

presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another. On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us (emphasis supplied). To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero. We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations

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which we feel should be made in aid of the rationale for our resolution of the controversy. 1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation should state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16 The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they

should be in writing and must have been executed in a language or dialect known to the testator. 17 However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21 Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that 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 signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. 24 Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28 In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be

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followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation. It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. We agree. What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial

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compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.)

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

. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due

execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written. The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another. Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself. In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do directly. 4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code. One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution

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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 and Nayve vs. Mojal, et al. 42 all adhered to this position. The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47 Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra. In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page

thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will. It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse. In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law. The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further provided in the same section that "The attestation shallstate the number of sheets or pages used, upon which the will is written, and the fact that

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the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed. We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view. The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended regarding

the contents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property. However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941. In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

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It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. 67 WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent. SO ORDERED.

G.R. No. L-5826 April 29, 1953 Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.PELAGIO CAGRO, ET AL., oppositors-appellants. This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949. The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.

G.R. No. L-36033 November 5, 1982 IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III, Maasin),respondent. This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator. In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand margin by the testatrix. Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution. The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate. Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance. The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents

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were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Meanwhile, the petitioner filed a motion for the appointment of special administrator. Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses. The petitioner decided to file the present petition. For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Article 805 of the Civil Code provides:

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 lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting

witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. We find the petition meritorious. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another 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. It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of Identification. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449). The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern

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tendency in respect to the formalities in the execution of a will" (Report of the Code commission, p. 103). Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page". In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration

or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on costs. SO ORDERED.

G.R. No. L-27440 December 24, 1927 JOSE VILLAFLOR, petitioner-appellant, vs.DEOGRACIAS TOBIAS, ET AL., oppositors-appellees. This is an appeal from the judgment denying a petition for the probate of a will alleged to have been executed by one Gregoria Villaflor who died in the municipality of Santo Domingo, Province of Ilocos Sur on October 7,

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1925. The petition was presented by Jose Villaflor, one of the testamentary heirs of the deceased. Pilar Villaflor, Deogracias Tobias, and several others whose names do not appear in the record, contested the will upon the following grounds: (1) That it was not signed by the alleged testatrix personally though she was able to do so at the time of the execution of the document; (2) that said testatrix did not authorize any one to sign the alleged will in her name; (3) that both before and after the execution of the document, Gregoria Villaflor signed various documents by thumb marks; (4) that although it is true that the testatrix requested that the will be prepared, she nevertheless refused to sign it because it was contrary to her desires and instructions; (5) that subsequent to the date upon which the alleged will was executed, Gregoria Villaflor on several occasions stated that it was not her testament; (6) that the alleged will was not executed or signed in conformity of the law. The grounds upon which the court below based the rejection of the document are thus stated in this decision.

After a careful examination of all the evidence of record, this court is of opinion that it has been sufficiently proved that Claro Lazo, the person who is alleged to have written the name of the testatrix in her behalf and by her express direction, subscribed the name and surname of the testatrix and signed the will in question without Rufino D. Soliven, one of the attesting witnesses, signed it; and lastly, when Rufino D. Soliven signed the will the witness Vicente Tacderas was not present. Besides the foregoing defect, which the court believes fatal, it also finds that the will in question, marked Exhibit B of the applicant, was typewritten on eight catalan sheets, one separated from the others; that the attestation clause was written on a separate sheet, marked page 9, when said clause could not have been written totally or partially on page 8, since one-half of this latter page is blank.lawphi1.net In the opinion of the court, all this circumstances tend to make the authenticity and due execution of the will in question very doubtful and suspicious. And if the testimony of the witnesses for the opposition should be taken into account as well as the circumstance that the testatrix Gregoria Villaflor has neither signed or subscribed the alleged will, notwithstanding the fact that it has been proven in the record, that on July 12, 1923, the day in which it is alleged that said will was executed, the testatrix was, in good and sound health, although she could not walk on her own feet inasmuch as she was then suffering from rheumatism or partial paralysis of the lower extremities, and that on July 27, and May 25, 1923, the testatrix Gregoria Villaflor used to mark with her thumb, if she did not sign, the document she executed, as it was proven during the trials by Exhibit 1 and 2 of the

opponents, the doubt and suspicion which this court entertains in regard to the authenticity of the will in question, becomes a certainty that said testament is false.

We are reluctant to set aside the findings of the court below but they are, in our opinion, so clearly without sufficient support in the record that we are constrained to reject them. The will in question is dated July 12, 1923, and was prepared by a lawyer, Eustaquio Gallardo, and as far as appearances go, was executed in strict compliance with the provisions of section 618 of the Code of Civil Procedure for the execution of wills. The testatrix's name was signed by one Claro Lazo, a clerk in the office of municipal treasurer of Santo Domingo, and the attesting witnesses were Vicente Tacderas, municipal president, Rufino D. Soliven, chief of police, and Mariano Pizarro, municipal treasurer, all of the town of Santo Domingo. The finding of the court below that the witness Soliven was not present when Claro Lazo signed the name of testatrix and when Vicente Tacderas signed as witness, is based on the fact that, in testifying in this case, Claro Lazo upon being asked to enumerate the names of the persons present at the time of signing of the document, omitted the name of Soliven. But it appears from the transcript of the testimony that he afterwards corrected his original statement and testified that Soliven, as well as the other witnesses to the will, was present while all of the signatures were fixed. This is in harmony with the testimony of all of the instrumental witnesses and is undoubtfully true; there is, indeed, nothing strange or unusual in a mistake such as that made by Lazo. It may be noted that it is not disputed that the lawyer Gallardo was present during the whole proceeding and as he appears to have possessed full knowledge of the formal requirements for the execution of the will, it is highly improbable that he would have allowed the will in question to be signed without the presence of a testatrix and of all the witnesses. That the attestation clause of the will is written on a separate page and not on the last page of the body of the document is, in our opinion, a matter of minor importance and is explained by the fact that if the clause had been written on the eight page of the will in direction continuation of the body thereof, there would have been sufficient space on that page for the signatures of the witnesses to the clause. It is also to be observed that all of the pages, including that upon which the attestation clause is written, bear the signatures of all the witnesses and that there is no question whatever as to the genuineness of said signatures. The fact that the name of the testatrix was written by another person, and that she did not sign by thumb mark, is easily explained and is evidently due to an attempt on the part of the lawyer Gallardo to comply strictly with the following clause in the Spanish text of section 618 of the Code of Civil Procedure: "Excepto en el caso a que se refiere el articulo anterior, no sera valido para la transmision de bienes muebles e inmuebles, ni los gravara y afectara, ningun testamento a menos que este escrito y que haya sido firmado por el

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testador, o que lleve el nombre de este, escrito por otra persona en su presencia y bajo su direccion expresa, . . . ." The making of a finger mark is not "escribir" and it may be noted that Gallardo apparently is a good Spanish scholar, that it does not appear that he knows the English language;. and that he therefore probably used the Spanish text of the Code. There is some testimony on the part of the contestants to the effect that the testatrix on various occasions, subsequent to the execution of the will, had stated that it was not in conformity with her instructions and that it was not her will. Assuming that such statements were made, we can give them but little importance. The testatrix was an old woman and might have well made the statements by way of justification in conversation with persons who considered themselves wronged by the provisions of her will, but expressions of that kind cannot, of course, work the revocation of the document. The testatrix lived for over two years after the will was made and had ample opportunity to make another will if she was dissatisfied with the first. For the reasons stated the appealed judgment is hereby reversed and it is ordered that the document in question be admitted to probate as the last will and testament of the deceased Gregoria Villaflor. No costs will be allowed. So ordered.

ART. 810 G.R. No. L-38338 January 28, 1985 IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs.ANDRES R. DE JESUS, JR., respondent. This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus. The antecedent facts which led to the filing of this petition are undisputed. After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus. On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973. Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that

on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ... The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother. Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution. On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law. Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with. On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside.

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

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out

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of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail. Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed. We agree with the petitioner. This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that:

xxx xxx xxx ... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is

better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx ... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of

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the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated. SO ORDERED.

G.R. Nos. 83843-44 April 5, 1990 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants, vs.COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees. The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as provided for in Article 8102 of the New Civil Code. The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will. On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador. Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors

Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37) Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious. After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro. Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition. Petitioners now assign the following errors committed by respondent court, to wit:

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

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This is also where it appears in writing of the place which is assigned and shared or the partition in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale. And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time for me being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there shall be no differences among themselves, those among brothers and sisters, for it is I myself their father who am making the apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any cause of troubles or differences among the brothers and sisters. II — Second Page And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they will be in good relations among themselves, brothers and sisters; And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall complain against the other, and against anyone of the brothers and sisters. III — THIRD PAGE And that referring to the other places of property, where the said property is located, the same being the fruits of our earnings of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefitted with all those property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied with, by all the brothers and sisters, the children of their two mothers — JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed with merit. The will has been dated in the hand of the testator himself in perfect compliance with Article 810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. These requirements are present in the subject will. Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death." Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate.

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Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000. PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00). SO ORDERED.

ART. 811 G.R. No. L-14003 August 5, 1960 FEDERICO AZAOLA, petitioner-appellant, vs.CESARIO SINGSON, oppositor-appellee. This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will. The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the

handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will. The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix." The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party. Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).

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We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of

the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel. En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados. El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory. Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary. In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs.

G.R. No. L-18979 June 30, 1964

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IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO ICASIANO, petitioner-appellee, vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants. Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such. This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof. The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs. On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator. 1äwphï1.ñët On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will. On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence. The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published

before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan. The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page. The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956. Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

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Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal. We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert. Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's

expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify). Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will. On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause". That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time. This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are

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otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege. The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional. That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition. IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

G.R. No. 123486 August 12, 1999 EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs.EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents. Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The

rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case. Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seño 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 Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily. The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death.4 On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.1âwphi1.nêt Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal. On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

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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 Seño Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7

On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies. Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered. Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available. Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased. Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He

testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure. The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit. Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seño Vda. de Ramonal. The holographic will which was written in Visayan, is translated in English as follows:

Instruction August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de Ramonal August 30, 1978

3. My jewelry's shall be divided among: 1. Eufemia Patigas 2. Josefina Salcedo 3. Evangeline Calugay (Sgd) Matilde Vda de Ramonal

August 30, 1978 4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal August 30, 1978

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Gene and Manuel: Follow my instruction in order that I will rest peacefully.

Mama Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that — in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805).

Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself. Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate. Hence, this petition. The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case.

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(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix. (3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seño 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.1âwphi1.nêt We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory.11 Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator. It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased. Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available. Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time? A. Collecting rentals. Q. From where?

A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12

x x x x x x x x x Q. Who sometime accompany her? A. I sometimes accompany her. Q. In collecting rentals does she issue receipts? A. Yes, sir.13

x x x x x x x x x Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them? A. Yes, sir. Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay? A. Matilde vda. De Ramonal. Q. Why do you say that is the signature of Matilde Vda. De Ramonal? A. I am familiar with her signature. Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants? A. Yes, sir. Q. Why do you say so? A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal. Q. How is this record of accounts made? How is this reflected? A. In handwritten.14

x x x x x x x x x Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal? A. Posting records. Q. Aside from that? A. Carrying letters. Q. Letters of whom? A. Matilde. Q. To whom? A. To her creditors.15

x x x x x x x x x Q. You testified that at time of her death she left a will. I am showing to you a document with

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its title "tugon" is this the document you are referring to? A. Yes, sir. Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this? A. My Aunt. Q. Why do you say this is the handwriting of your aunt? A. Because I am familiar with her signature.16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note. Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes? A. Yes, sir. Q. Who was in possession of that will? A. I. Q. Since when did you have the possession of the will? A. It was in my mother's possession. Q. So, it was not in your possession? A. Sorry, yes. Q. And when did you come into possession since as you said this was originally in the possession of your mother? A. 1985.17

x x x x x x x x x 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 Seño Vda. de Ramonal. In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct? A. Yes, sir. Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct? A. Yes, sir.19

x x x x x x x x x 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

x x x x x x x x x Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible? A. Yes, sir the handwriting shows that she was very exhausted. Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted? A. In writing. Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies? A. That was I think. (sic). Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid

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movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners? A. Yes, sir. Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that? A. Yes, sir.21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that:

Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal? A. During my stay I used to go with her to the church, to market and then to her transactions. Q. What else? What services that you rendered? A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer. Q. What was your purpose of going to her lawyer? A. I used to be her personal driver. Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal? A. Yes, sir. Q. How come that you acquired familiarity? A. Because I lived with her since birth.22

x x x x x x x x x Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this? A. Yes, sir, that is her signature. Q. Why do you say that is her signature? A. I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document. The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal? A. Yes, sir I know her because she is my godmother the husband is my godfather.

Actually I am related to the husband by consanguinity. Q. Can you tell the name of the husband? A. The late husband is Justo Ramonal.24

x x x x x x x x x 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

x x x x x x x x x 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

x x x x x x x x x Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this? A. That is the signature of Matilde Vda de Ramonal. Q. Also in exhibit n-3, whose signature is this? A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27

x x x x x x x x x 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

x x x x x x x x x 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.

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Q. This one, Matilde Vda de Ramonal, whose signature is this? A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal. Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this? A. Well, that is similar to that signature appearing in the project of partition. Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that? A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal. Q. Why do you say that? A. Because there is a similarity in the way it is being written. Q. How about this signature in item no. 4, can you tell the court whose signature is this? A. The same is true with the signature in item no. 4. It seems that they are similar.29

x x x x x x x x x Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal? A. Yes, it is similar to the project of partition. Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made? A. That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not mandatory. In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seño vda. de Ramonal.1âwphi1.nêt No costs. SO ORDERED.

G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs.AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as

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Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will

is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

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

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lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED.

G.R. Nos. 75005-06 February 15, 1990 JOSE RIVERA petitioner, vs.INTERMEDIATE APPELLATE COURT and ADELAIDO J. RIVERA, respondents. Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two? On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a petition for the issuance of letters of administration over Venancio's estate. Docketed as SP No. 1076, this petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the decedent. Adelaido averred that Venancio was his father and did not die intestate but in fact left two holographic wills. 1 On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of Angeles City, a petition for the probate of the holographic wills. Docketed as SP No. 1091, this petition was in turn opposed by Jose Rivera, who reiterated that he was the sole heir of Venancio's intestate estate. 2 On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later appointed special administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the son of the decedent but of a different Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate was in question was married to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no claim to this estate because the decedent was not his father. The holographic wills were also admitted to probate.3 On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate Court. 4 Its decision is

now the subject of this petition, which urges the reversal of the respondent court. In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought to show that the said person was married in 1928 to Maria Vital, who was his mother. He submitted for this purpose Exhibit A, the marriage certificate of the couple, and Exhibit B, his own baptismal certificate where the couple was indicated as his parents. The petitioner also presented Domingo Santos, who testified that Jose was indeed the son of the couple and that he saw Venancio and Jose together several times. 5 Jose himself stressed that Adelaido considered him a half-brother and kissed his hand as a sign of respect whenever they met. He insisted that Adelaido and his brothers and sisters were illegitimate children, sired by Venancio with Maria Jocson. 6 Adelaido, for his part, maintained that he and his brothers and sisters were born to Venancio Rivera and Maria Jocson, who were legally married and lived as such for many years. He explained that he could not present his parents' marriage certificate because the record of marriages for 1942 in Mabalacat were destroyed when the town was burned during the war, as certified by Exhibit 6. 7 He also submitted his own birth certificate and those of his sisters Zenaida and Yolanda Rivera, who were each described therein as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty. Regalado P. Morales, then 71 years of age, affirmed that he knew the deceased and his parents, Magno Rivera and Gertrudes de los Reyes, and it was during the Japanese occupation that Venancio introduced to him Maria Jocson as his wife. 9 To prove that there were in fact two persons by the same name of Venancio Rivera, Adelaido offered Venancio Rivera's baptismal certificate showing that his parents were Magno Rivera and Gertrudes de los Reyes, 10 as contrasted with the marriage certificate submitted by Jose, which indicated that the Venancio Rivera subject thereof was the son of Florencio Rivera and Estrudez Reyes. 11 He also denied kissing Jose's hand or recognizing him as a brother. 12 We find in favor of Adelaido J. Rivera. It is true that Adelaido could not present his parents' marriage certificate because, as he explained it, the marriage records for 1942 in the Mabalacat civil registry were burned during the war. Even so, he could still rely on the presumption of marriage, since it is not denied that Venancio Rivera and Maria Jocson lived together as husband and wife for many years, begetting seven children in all during that time. According to Article 220 of the Civil Code:

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

The Rules of Court, in Rule 131, provides:

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SEC. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

By contrast, although Jose did present his parents' marriage certificate, Venancio was described therein as the son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described in Exhibit 4, his baptismal certificate, as the son of Magno Rivera. While we realize that such baptismal certificate is not conclusive evidence of Venancio's filiation (which is not the issue here) it may nonetheless be considered to determine his real identity. Jose insists that Magno and Florencio are one and the same person, arguing that it is not uncommon for a person to be called by different names. The Court is not convinced. There is no evidence that Venancio's father was called either Magno or Florencio. What is more likely is that two or more persons may live at the same time and bear the same name, even in the same community. That is what the courts below found in the cases at bar. What this Court considers particularly intriguing is why, if it is true that he was the legitimate son of Venancio Rivera, Jose did not assert his right as such when his father was still alive. By his own account, Jose supported himself — and presumably also his mother Maria Vital — as a gasoline attendant and driver for many years. All the time, his father was residing in the same town — and obviously prospering — and available for support. His alleged father was openly living with another woman and raising another family, but this was apparently accepted by Jose without protest, taking no step whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial terms, there is no reason why the father did not help the son and instead left Jose to fend for himself as a humble worker while his other children by Maria Jocson enjoyed a comfortable life. Such paternal discrimination is difficult to understand, especially if it is considered — assuming the claims to be true — that Jose was the oldest and, by his own account, the only legitimate child of Venancio Rivera. And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's legitimate wife — if indeed she was — she should have objected when her husband abandoned her and founded another family by another woman, and in the same town at that. Seeing that the children of Maria Jocson were being raised well while her own son Jose was practically ignored and neglected, she nevertheless did not demand for him at least support, if not better treatment, from his legitimate father. It is unnatural for a lawful wife to say nothing if she is deserted in favor of another woman and for a

caring mother not to protect her son's interests from his wayward father's neglect. The fact is that this forsaken wife never demanded support from her wealthy if errant husband. She did not file a complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson, the alleged partners in crime and sin. Maria Vital was completely passive and complaisant. Significantly, as noted by the respondent court, Maria Vital was not even presented at the trial to support her son's allegations that she was the decedent's lawful wife. Jose says this was not done because she was already old and bedridden then. But there was no impediment to the taking of her deposition in her own house. No effort was made toward this end although her testimony was vital to the petitioner's cause. Jose dismisses such testimony as merely "cumulative," but this Court does not agree. Having alleged that Maria Jocson's marriage to Venancio Rivera was null and void, Jose had the burden of proving that serious allegation. We find from the evidence of record that the respondent court did not err in holding that the Venancio Rivera who married Maria Jocson in 1942 was not the same person who married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family which had no relation whatsoever with the family of Venancio Rivera and Maria Vital. This was more prosperous and prominent. Except for the curious Identity of names of the head of each, there is no evidence linking the two families or showing that the deceased Venancio Rivera was the head of both. Now for the holographic wills. The respondent court considered them valid because it found them to have been written, dated and signed by the testator himself in accordance with Article 810 of the Civil Code. It also held there was no necessity of presenting the three witnesses required under Article 811 because the authenticity of the wills had not been questioned. The existence and therefore also the authenticity of the holographic wills were questioned by Jose Rivera. In his own petition in SP No. 1076, he declared that Venancio Rivera died intestate; and in SP No. 1091, he denied the existence of the holographic wills presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court should have applied Article 811 of the Civil Code, providing as follows:

In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the deceased Venancio Rivera whose estate is in question. Hence,

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being a mere stranger, he had no personality to contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written and signed by their father, was sufficient. WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the petitioner. SO ORDERED.

ART. 814 G.R. No. L-40207 September 28, 1984 ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents. On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968. The holographic Will reads in full as follows:

My Last will and Testament In the name of God, Amen. I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament. 1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory.

xxx xxx xxx The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel. The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C". WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby denied. SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation." From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not theoriginal unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary

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when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna

acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l). Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del año en que fue extendido 3(Emphasis ours).

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs. SO ORDERED.

G.R. No. 106720 September 15, 1994 SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs.THE COURT OF APPEALS AND CLEMENTE SAND, respondents. This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will. Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained

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alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

xxx xxx xxx While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and thecharacter of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not

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as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did

not intend that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6 In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to

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close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

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

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento,

segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

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

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688. Art. 688: Holographic wills may be executed only by persons of full age. In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot

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validly dispose of the whole property, which she shares with her father's other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. SO ORDERED.

G.R. No. L-23875 May 27, 1977 TESTATE ESTATE OF THE LATE GREGORIO VENTURA: MARIA VENTURA, executrix-appellant, MIGUEL VENTURA and JUANA CARDOVA, Heirs, vs.MERCEDES VENTURA, and her husband PEDRO D. CORPUZ, and GREGORIA VENTURA and her husband EXEQUIEL VICTORIO, oppositors-appellees. Appeal from the orders entered by the Court of First Instance of Nueva Ecija (Guimba Branch) in Special Proceedings No. 812, Testate Estate of the Late Gregorio Ventura, on February 26, 1964 and June 11, 1964 granting the motion of appellee Mercedes Ventura to annul the institution of heirs made in the will of the deceased, which was probated during his lifetime, upon the ground that said appellee and her sister Gregoria Ventura who have been found in the decision of another court in a corresponding case, already final, to be legitimate children and compulsory heirs of said deceased, were preterited and deprived of their share in the inheritance. Appellant denies that the decision referred to has already become final and executory. On December 2, 1952, herein appellee Gregoria Ventura filed an action in the Court of First Instance of Nueva Ecija, Branch I, against the other appellee herein Mercedes Ventura, who later joined cause with Gregoria, and Gregorio Ventura. Gregoria and Mercedes claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties described in the complaint be declared as the share of their mother in the conjugal partnership, with them as the only forced heirs of their mother Paulina. The case was docketed as Civil Case No. 1064. Later on, the same properties invoked in the just mentioned case became the subject of another action, Civil Case No. 1476, also of the Court of First Instance of Nueva Ecija, Branch I, filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria. They alleged that as the only children of Modesto Simpliciano, sole brother of Paulina, they, instead of Mercedes and Gregoria, whom they claimed are adulterous children of Paulina with another man,

Teodoro Ventura, and as such are not entitled to inherit from her under the Old Civil Code, are the ones who should be declared as inheritors of the share of Paulina in the conjugal partnership with Gregorio. In his answer to the above complaints, Gregorio Ventura took the position that Mercedes and Gregoria are not his children because they were born out of the adulterous relationship between Paulina who had left their conjugal home and Teodoro Ventura with whom she lived for more than ten years. In Civil Case No. 1064, Gregorio Ventura filed a counterclaim against Mercedes and her husband, Pedro Corpuz, seeking the reconveyance from them of properties covered by Transfer Certificates of Title Nos. T-1102, T-1212, T- 1213 and T-1214 of the Office of the Register of Deeds of Nueva Ecija. Meanwhile, on December 14, 1953, Gregorio Ventura filed a petition for the probate of his will and thus gave rise to herein subject proceeding, Special Proceedings No. 812. In due course, said will was admitted to probate on January 14, 1954. This admission became final. Gregorio died on September 26, 1955, and on October 17, 1955, pursuant to his will, Maria Ventura was appointed executrix, in which capacity, she is appellant in this case. On November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the court rendered its decision, the dispositive part of which reads:

WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the legitimate daughters of Paulina Simpliciano and Greogorio Ventura; declaring that as such legitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in par. six of the complaint; ... The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from the receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of this decision. Without pronouncement as to costs. (Page 36, Record on Appeal.)

Upon motion for reconsideration, this decision was amended by reducing the amount of the monetary judgment against Mercedes and her husband to P97,000. Maria Ventura, who, as executrix of the estate of Gregorio, was substituted for him, tried on December 8, 1959 (also; on December 24, 1959) to appeal from the above decision to this Court (G.R. No. L-18283) but said appeal was dismissed for late payment of the docketing fees and the estimated cost of printing this record on appeal. Subsequently, or, on October 8, 1962 and ,

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October 31, 1962, Executrix Maria filed motions for the execution, alleging that "Said decision, as amended, had long been final and executory." Earlier, or, on July 14, 1962, Mercedes filed, thru counsel, Atty. Arturo M. Tolentino, the "Motion to Annul Provisions of Will" that spawned the present controversy. The motion reads as follows:

MOTION TO ANNUL PROVISIONS OF WILL COMES now the undersigned counsel, for MERCEDES VENTURA and to this Honorable Court respectfully states: 1. That on November 4,1959, in Civil Cases Nos. 1064 and 1476, entitled "Gregoria Ventura and Exequiel Victoria plaintiffs, versus Gregorio Ventura, Mercedes Ventura and Pedro Corpuz, as husband of Mercedes Ventura", the Honorable Court of First Instance of Nueva Ecija, through the Honorable Judge Jose N. Leuterio, rendered a decision the dispositive portion of which was originally as follows: WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the legitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such legitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph 6 of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes and Gregorio Ventura the amount of P19,074.09 which shall be divided equally between Mercedes and Gregoria Ventura; declaring that Emiliano Ventura is not the son of Paulina Simpliciano and therefore, not entitled to share in the estate of Paulina Simpliciano; declaring that Mercedes Ventura and Pedro D. Corpuz are the exclusive owners of the properties described in the certificates of Title Nos. T-1102, T-1212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering the said Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00 one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria have succeeded, to be divided between Mercedes and Gregoria Ventura in equal parts;

dismissing Civil Case 1476. The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from the receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of this decision. Without pronouncement as to costs. 2. Subsequently, a Motion to amend the above dispositive portion with respect to the sum of P100,000.00, which Mercedes Ventura and Pedro D. Corpuz are required to pay to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano, was filed, and the Honorable Court amended its decision reducing the said amount to P97,000.00, under an Order, dated December 21, 1959. 3. The foregoing decision of the Honorable Court of First Instance of Nueva Ecija has long become final. 4. That in the Will probated by this Honorable Court in the above-entitled case, Mercedes Ventura and Gregoria Ventura, legitimate children of the deceased Gregorio Ventura with Paulina Simpliciano, have been omitted or preterited. 5. That under Article 854 of the Civil Code, "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 devises and legacies shall be valid insofar as they are not inofficious". 6. That pursuant to the above-quoted provisions of Article 854 of the Civil Code, all of the provisions of the probated will designating heirs are null and void, as a result intestacy follows, unless there are devisees and legacies which are not inofficious which would stand to such extent that they are not inofficious. IN VIEW OF THE FOREGOING, it is respectfully prayed that this Honorable Court declares null and void all the provisions of the Will probated in the above- entitled case designating heirs to any portion of the estate of the deceased Gregorio Ventura, and to declare MERCEDES VENTURA and GREGORIA VENTURA as the sole legitimate children of the deceased

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Gregorio Ventura entitled to his estate by the rules of intestacy, without prejudice to the rights of any other compulsory heir who may be entitled to any portion of the estate. Manila, for Cabantuan City, July 14, 1962. (Pp. 10-14, Record on Appeal.)

This motion was opposed first, by Miguel Ventura and Juana Cardona, who were given shares in the will of Gregorio, and later by appellant Maria. The main ground of this latter opposition was that the decision in Civil Cases Nos. 1064 and 1476 was not yet final, notwithstanding the dismissal of her appeal. She contended that since the action filed by Mercedes and Gregoria was for partition, the decision of the court of November 4, 1959, which merely "urged" the parties "to arrive at an amicable settlement of the properties herein adjudicated within twenty days from receipt of this decision," and "upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of this decision" left something else to be done and was, therefore, interlocutory and not final, citing 1 Moran, Rules of Court, 1950 ed. 810 and the cases therein cited. On February 26, 1964, the trial court issued the first assailed order thus:

ORDER This refers to the "Motion to Annul Provisions of Will" filed by Mercedes Ventura thru counsel, Atty. Arturo M. Tolentino, dated July 14, 1962. After a careful perusal of said motion, conjointly with the supporting memorandum therefor filed by Gregoria Ventura dated November 4, 1963; the opposition thereto filed by Miguel Ventura and Juana Cardona, dated July 26, 1962, as well as the opposition filed by executrix Maria Ventura, dated October 30, 1963, and the rejoinder thereto of the spouses Gregoria Ventura and Exequiel Victoria dated November 29, 1963 all filed thru their respective counsel, the Court finds said motion meritorious and hereby grants the same, it appearing that the compulsory heirs Mercedes Ventura and Gregoria Ventura, legitimate children of the deceased Gregoria Ventura and Paulina Simpliciano, are indeed preterited. WHEREFORE, the institution of heirs in the will, Exhibit D-1, is hereby annulled. However, the devises given in favor of Clarita Ventura and Trinidad Ventura, as set out in paragraph 6 of the will, and in favor of Agapito Alipio, Juliana and Eufracia, all surnamed Simpliciano, as

set forth in par. 7 thereof, shall remain valid insofar as they are not inofficious. SO ORDERED. (Pp. 30-31, Rec. on Appeal.)

Maria moved for reconsideration, insisting on her theory of non-finality of the decision and adding as authority in support of her pose the ruling in Fuentebella vs. Carrascoso, G. R. No. 48102, May 27, 1942, which reversed the doctrines laid down in Africa vs. Africa, 42 Phil. 934 and Villanueva vs. Capistrano, 49 Phil. 460, relied upon by appellees. On June 11, 1964, the other impugned order was entered as follows:

ORDER To the order of this Court dated February 26, 1964 in which the institution of heirs in the will, Exhibit D-1 was annulled upon motion of Gregoria Ventura and Mercedes Ventura who appear to have prevailed by this Court's judgment in Civil Cases Nos. 1064 and 1476 in which, among other things, the said Mercedes and Gregoria Ventura were declared as legitimate daughters of Paulina Simpliciano and Gregorio Ventura and entitled to one-half of the properties of the said spouses, a motion for reconsideration was filed by the executrix on the ground that the same is premature. Although the properties subject matter of Civil Cases Nos. 1064 and 1476 have not been actually partitioned in accordance with the said decision, but such partition did not, and could not, delay the finality of the judgment in such cases, considering that the partition is purely mechanical and all that the parties need do was to convoke the board of commissioners and to undertake the actual partition. The main cause of action, vis., the declaration of legitimacy of Mercedes and Gregoria Ventura, did not in any way depend on such partition, hence, after the lapse of the reglementary period within which to appeal the case, the finding of this Court respecting such legitimacy has now become final. UPON THE FOREGOING CONSIDERATIONS, this Court denied the motion for reconsideration filed by the executrix Maria Ventura on March 9, 1964. SO ORDERED. (Pp. 64-66, Rec. on Appeal.)

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In her brief, appellant assigns the following four errors allegedly committed by the probate court:

ASSIGNMENT OF ERRORS I THE LOWER COURT ERRED IN NOT DECLARING THAT THE DECISION IN CIVIL CASES NOS. 1064 and 1476 ORDERING THE PARTITION OF THE PROPERTIES DESCRIBED IN THE COMPLAINT IS NOT AS YET FINAL AND EXECUTORY, THERE BEING SOMETHING MORE TO BE DONE IN THE TRIAL COURT FOR THE COMPLETE DISPOSITION OF THE CASES, AND, THEREFORE, IT IS PREMATURE TO ANNUL THE INSTITUTION OF HEIRS IN THE WILL OF GREGORIO VENTURA, EXHIBIT D-1. II THE LOWER COURT ERRED IN ANNULLING THE INSTITUTION OF HEIRS IN THE WILL OF GREGORIO VENTURA, EXHIBIT D-1. III THE LOWER COURT ERRED IN DECLARING THAT "ALTHOUGH THE PROPERTIES SUBJECT MATTER OF CIVIL CASES NOS. 1064 AND 1476 HAVE NOT BEEN ACTUALLY PARTITIONED IN ACCORDANCE WITH THE DECISION, BUT SUCH PARTITION DID NOT, AND COULD NOT, DELAY IN THE FINALITY OF THE JUDGMENT IN SUCH CASES, CONSIDERING THAT THE PARTITION IS PURELY MECHANICAL AND ALL THAT THE PARTIES NEED DO WAS TO CONVOKE THE BOARD OF COMMISSIONERS AND TO UNDERTAKE THE ACTUAL PARTITION." IV THE LOWER COURT ERRED IN HOLDING THAT THE DECLARATION OF LEGITIMACY OF MERCEDES AND GREGORIA VENTURA, IN CIVIL CASES NOS., 1064 AND 1476, DID NOT IN ANY WAY DEPEND ON SUCH PARTITION, HENCE, AFTER THE LAPSE OF THE REGLEMENTARY PERIOD WITHIN WHICH TO APPEAL THE CASE, THE FINDINGS OF THE COURT RESPECTING SUCH LEGITIMACY BECAME FINAL. (Pp- 1-3, Brief for Executrix-Appellant.)

Principal additional authority relied upon by appellant in maintaining that the decision in question has not yet become final is Zaldariaga vs. Enriquez, et al., 1 SCRA 1188. As may be noted, the issues discussed by the parties in their respective briefs could require a renewed deliberation on the variance in opinions among the members of the Court which culminated in the majority ruling in Miranda vs. Court of Appeals, et al., 71 SCRA 295. It appears, however, that an important development in the instant case should make it unnecessary for Us to reexamine in this case said majority ruling. On February 12,1975, a motion to dismiss the present appeal on the ground that it has become moot and academic, was filed by Atty. Tolentino, as counsel for appellees Mercedes Ventura and Pedro Corpuz. The motion states that:

2. That on October 10, 1968, the Commissioners appointed by the lower court to partition the properties subject-matter of Civil Cases Nos. 1064 and 1476 submitted their Amended Commissioners' Report for the partition of the conjugal estate of the late spouses, Gregorio Ventura and Paulina Simpliciano, and the partition of the estate of the late Paulina Simpliciano between Gregoria Ventura and Mercedes Ventura. 3. The Commissioners, for the information of the Court, were: Emmanuel Mariano, husband of and representing the executrix-appellant, Maria Ventura; Daniel Victoria son of and representing Gregoria Ventura; and Pedro D. Corpuz, husband of and representing Mercedes Ventura. 4. That on October 22, 1968, the Court before whom Civil Cases G.R. Nos. 1064 and 1476 were pending, issued an Order reading as follows:

Finding the Commissioners' Report, dated October 10, 1968, duly signed by the three Commissioners in accordance with law and not against public policy and morals, the same is hereby approved. Let the said Commissioners' Report be the laws between the parties with respect to the partition sought for the parties are hereby enjoined to abide 6y all the terms and

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stipulations stated and provided in said Report. These cases are hereby declared closed and terminated without any pronouncement as to costs. SO ORDERED.

5. That no appeal was made from said order, which is now final and executory. (Pp. 2-3, Motion in record.)

On March 6, 1975, appellant Maria Ventura, thru new counsel, Atty. Inocencio B. Garampil, filed an opposition contending that "there is no basis in alleging that the appeal (in this case) has become moot and academic" just because the partition in Civil Cases Nos. 1064 and 1476 has already been done with approval of the court which has not been appealed. But We find this posture of appellant inconsistent with the position taken by her in the court below in her motion for reconsideration of the order of February 26, 1964, where she stated:

Is the decision of the Court in Civil Cases Nos. 1064 and 1476 dated November 4, 1959, as amended, the dispositive portion of which is quoted above, already final and executory? If it is already final and executory then the findings of the Court 'declaring Mercedes Ventura and Gregoria Ventura to be the legitimate daughters of Paulina Simpliciano and Gregorio Ventura' is already an established fact, and, therefore, Mercedes and Gregoria may properly ask for the annulment of the institution of heirs in the will, Exh. D-1, and this Court would be correct in annulling the institution of heirs in the will Exh. D-1 for 'the compulsory heirs Mercedes Ventura and Gregoria Ventura, legitimate children of the deceased Gregorio Ventura and Paulina Simpliciano, are indeed preterited'(order under reconsideration). On the other hand, if said decision of November 4, 1959 is not yet final and executory, or if it is merely interlocutory, because there is something more to be done for the complete disposition of the case, that is, the making of the partition by the duly appointed three (3) commissioners, and the action of the court upon such report, and that the order or judgment of the court approving such report is the final order or judgment, it follows that the findings of the court 'declaring Mercedes Ventura and Gregoria Ventura to be the legitimate daughters of Paulina

Simpliciano and Gregorio Ventura', is interlocutory and not final. The executrix shall appeal said decision of November 4, 1959 in due time. If said decision of November 4, 1959 is not as yet final, it is, therefore, premature for this Court to order the annulment of the institution of heirs in the will Exh. D-1, on the ground that said Mercedes and Gregoria were preterited. If when we shall appeal said decision of November 4, 1959 and surely we shall appeal and that if the higher court shall find Mercedes and Gregoria to, be the adulterous children of Paulina Simpliciano and her paramour Teodoro Ventura, as contended by Gregorio Ventura, then Mercedes and Gregoria are foreigners to Gregorio Ventura, they are not his daughters, and consequently they could not be said to be "preterited" in Gregorio Ventura's will, Exh. D-1, and clearly the order of this Court dated February 26, 1964, is manifestly premature. Let us wait for the finality of the decision of November 4, 1959 entered in Cases Nos. 1064 and 1476. (Pp. 38-40, Rec. on Appeal.)

And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos. 1064 and 1476 declaring that appellees Mercedes and Gregoria Ventura are the legitimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment of the institution of heirs made in the probated will of said deceased became final and executory upon the finality of the order approving the partition directed in the decision in question. We need not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said decision had the nature of an interlocutory order only. To be sure, in the ease of Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were minded to modify again Miranda and go back to Fuentebella and Zaldariaga, - and it is not, as of now - there can be no question that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the decision in controversy has already become final and executory in all respects. Hence, the case at bar has become moot and academic.

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IN VIEW OF ALL THE FOREGOING, the appeal of Executrix-Appellant Maria Ventura in this case is hereby dismissed. No costs in this instance. G.R. No. L-26306 April 27, 1988 TESTATE ESTATE OF THE LATE GREGORIO VENTURA MARIA VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA, heirs-appellants, vs. GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees. This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba, Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, dated October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix of the estate of the late Gregorio Ventura, and in her place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record on Appeal, pp. 120-131.) Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura while Miguel Ventura and Juana Cardona are his son and saving spouse who are also the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and Gregoria Ventura are the deceased's legitimate children with his former wife, the late Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was denied by the deceased in his will (Record on Appeal, p. 4). On December 14,1953, Gregorio Ventura filed a petition for the probate of his will which did not include the appellees and the petition was docketed as Special Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria Ventura, although an illegitimate child, was named and appointed by the testator to be the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7). In due course, said will was admitted to probate on January 14,1954 (Record on Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955. On October 10, 1955, the appellant Maria Ventura filed a motion for her appointment as executrix and for the issuance of letters testamentary in her favor (Record on Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix and the corresponding letters testamentary was issued in her favor (Record on Appeal, pp. 11-12). On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of Gregorio Ventura (Record on Appeal, pp. 12-20). On June 17,1960, she filed her accounts of administration for the years 1955 to 1960, inclusive. (Record on Appeal, pp. 20-27). Said account of administration was opposed by the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963 (Record on Appeal, pp. 46-50). Both oppositions assailed the veracity of the

report as not reflecting the true income of the estate and the expenses which allegedly are not administration expenses. But on January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval of the accounts of administration or to have their approval without the opposition of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and Exequiel Victorio on the ground that the question of the paternity of Mercedes Ventura and Gregoria Ventura is still pending final determination before the Supreme Court and that should they be adjudged the adulterous children of testator, as claimed, they are not entitled to inherit nor to oppose the approval of the counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold in abeyance the approval of the accounts of administration on the ground that Mercedes and Gregoria Ventura had already been declared by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are supposed to be pending before the Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961, the motion to hold in abeyance the approval of the accounts was denied (Record on Appeal, pp. 39-40). It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963 in connection with the accounts of the executrix Maria Ventura dated June 17, 1960 and the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura (Record on Appeal, p. 45). On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria Ventura, namely: (1) motion to remove the executrix Maria Ventura which was supplemented on April 27, 1965; (2) motion to require her to deposit the harvest of palay of the property under administration in a bonded warehouse; (3) motion to render an accounting of the proceeds and expenses of Administration; and (4) motion to require her to include in the inventory of the estate certain excluded properties (Record on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs Juana Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71). On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to require an Up-to-date Accounting and to Require Executrix Ventura to Include Excluded Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965, Record on Appeal, p. 73). The other two motions were however set for hearing. The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1) that she is grossly incompetent; (2) that she has maliciously and purposely concealed certain properties of the estate in the inventory; (3) that she is merely an illegitimate daughter who can have no harmonious relations with the appellees; (4) that the executrix has neglected to render her accounts and failed to comply with the Order of the

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Court of December 12, 1963, requiring her to file her accounts of administration for the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with permanent physical defect hindering her from efficiently performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79). On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which were again opposed by the spouses Exequiel Victorio and Gregoria Ventura on September 21, 1965 and by the spouses Mercedes Ventura and Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix filed her supplemental opposition to the aforesaid four motions, and prayed that the joint supplemental motion to remove the executrix be denied or held in abeyance until after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the estate taxes have not been paid, ordered the administratrix to pay the same within thirty (30) days. On September 13, 1965, the lower court denied the suspension of the proceedings and deferred the resolution of the joint motion to remove executrix Maria Ventura until after the examination of the physical fitness of said executrix to undertake her duties as such. Also, it ordered the deposit of all palay to be harvested in the next agricultural year and subsequent years to be deposited in a bonded warehouse to be selected by the Court and the palay so deposited shall not be withdrawn without the express permission of the Court (Record on Appeal, pp. 103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed their opposition to the accounts of administration of Maria Ventura dated May 17, 1965, while that of spouses Mercedes Ventura and Pedro Corpuz was filed on September 29, 1965, both oppositions alleging among others that said accounts do not reflect the true and actual income of the estate and that the expenses reported thereunder are fake, exhorbitant and speculative (Record on Appeal, pp. 106-120). On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has squandered the funds of the estate, was inefficient and incompetent, has failed to comply with the orders of the Court in the matter of presenting up-to-date statements of accounts and neglected to pay the real estate taxes of the estate, rendered the questioned decision, the dispositive portion of which reads:

WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix of the estate and in her place Mercedes Ventura and Gregoria Ventura are hereby appointed joint a tratrices of the estate upon filing by each of them of a bond of P 7,000.00. Let letters of administration be issued to Mercedes

Ventura and Gregoria Ventura upon their qualification. IT IS SO ORDERED. (Record on Appeal pp. 120-131).

Hence, this appeal. In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura assign the following errors allegedly committed by the probate court:

ASSIGNMENT OF ERRORS I The lower court erred in ordering the removal of Maria Ventura as executrix and administratrix of the will and estate of the deceased Gregorio Ventura without giving her full opportunity to be heard and to present all her evidence. II The lower court erred in finding that the executrix Maria Ventura had squandered and dissipated the funds of the estate under her administration. III The lower court erred in finding that the executrix Maria Ventura was inefficient and incompetent. IV That, considering the circumtances surrounding the case, the lower court erred in finding that the failure of Maria Ventura to submit her periodical account had justified her removal as executrix. V The lower court erred in considering as an established fact that the appellees Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the deceased Gregorio Ventura. VI The lower court erred in finding that the devises and bequests in favor of Maria Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and Testament of the late Gregorio Ventura have ipso facto been annulled. VII The lower court erred in allowing the appellees Mercedes Ventura and Gregoria Ventura to intervene in the hearing of the accounts of administration submitted by the executrix Maria Ventura and/or in not suspending the hearing of the said accounts until the said appellees have

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finally established their status as legitimate children of the deceased Gregorio Ventura. VIII The lower court erred in appointing (even without a proper petition for appointment and much less a hearing on the appointment of) the appellees Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint administratrices of the estate of the deceased Gregorio Ventura. IX The lower court erred in not appointing the surviving widow, Juana Cardona, or Miguel Ventura, as administratrix of the estate of Gregorio Ventura in case the removal of Maria Ventura as executrix and administratrix thereof is legally justified. X Considering that there are in fact two (2) factions representing opposite interests in the estate, the lower court erred in not appointing Juana Cardona, or Miguel Ventura, as one of the two (2) administratrices.' (Joint Brief for the Appellants, pp. 1-4)

On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel Victoria), having failed to submit their respective briefs within the period for the purpose, which expired on July 2 and May 29,1967, respectively, the Supreme Court Resolved to consider this case submitted for decision WITHOUT SAID APPELLEES' BRIEF (Rollo, p. 152). The crucial issue in this case is whether or not the removal of Maria Ventura as executrix is legally justified. This issue has, however, become moot and academic in view of the decision of this Court in related cases. At the outset, it is worthy to note that aside from the instant special proceedings, there are two other civil cases involving the estate of the deceased Gregoria Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2, 1952 by herein appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and asked that one-half of the properties described in the complaint be declared as the share of their mother in the conjugal

partnership, with them as the only forced heirs of their mother Paulina (Joint Brief for the Appellants, pp. 53-68). Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch I. They alleged that as the only children of Modesto Simpliciano, sole brother of Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are adulterous children of Paulina with another man, Teodoro Ventura and as such are not entitled to inherit from her, are the ones who should inherit the share of Paulina Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The Appealant,pp.69-79) It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the lower court rendered its judgment, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the ligitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph six of the complaint; ordering the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes Ventura and Gregorio Ventura the amount of P 19,074.09 which shall be divided equally between Mercedes and Gregoria Ventura declaring Mercedes Ventura and Pedro Corpuz are the exclusive owners of the property describe in the certificate of Title Nos. T-1102, 212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of which shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have succeeded, to be divided between Mercedes and Gregoria in equal parts; and dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the properties in accordance with the terms of the decision. Without pronouncements as to

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costs. (Emphasis supplied). (Joint Brief for the Appellants, pp. 3738.)

Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions of the will of the deceased Gregorio Ventura in Special Proceedings No. 812, which motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura. They claimed that the decision dated November 4,1959 in Civil Cases Nos. 1064 and 1476 was not yet final. On February 26,1964, the court annulled the institution of the heirs in the probated will of Gregorio Ventura. The motion for reconsideration of the aforesaid order filed by executrix Maria Ventura was denied on June 11, 1964. Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders of the probate court in Special Proceedings No. 812 before the Supreme Court and was docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate Justice Antonio P. Barredo, ruled, as follows:

And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos.1064 and 1476 declaring that appellees Mercedes and Gregoria Ventura are the ligimate children of the deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are entitled to the annulment of the institution of heirs made in the probated will of said deceased became final and executory upon the finality of the order, approving ther partition directed in the decision in question. We need not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said decision had the nature of an interlocutory order only. To be sure, in the case of Miranda, aforementioned, the opinion of the majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were minded to modify again Miranda and go back to Fuentebella and Zaldariaga — and it is not, as of now — there can be no question that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom, Emmanuel Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court. That order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the decision in controversy has already become final and executory in all respects. Hence, the case at bar has

become moot and academic. (Ventura vs. Ventura, 77 SCRA 159, May 27,1977)

Under Article 854 of the Civil Code, "the pretention 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 devises and legacies shall be valid insofar as they are not inofficious," and as a result, intestacy follows, thereby rendering the previous appointment of Maria Ventura as executrix moot and academic. This would now necessitate the appointment of another administrator, under the following provision: Section 6, Rule 78 of the Rules of Court:

When and to whom letters of administration granted.-If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, a petition shall be granted: (a) To the surviving husband or wife, as the case may be or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;" xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel Ventura. The "next of kin" has been defined as those persons who are entitled under the statute of distribution to the decedent's property (Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the nearest of kin, whose interest in the estate is more preponderant, is preferred in the choice of administrator. 'Among members of a class the strongest ground for preference is the amount or preponderance of interest. As between next of kin, the nearest of kin is to be preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the Philippines, Vol. V-B 1970 Ed., p. 23). As decided by the lower court and sustained by the Supreme Court, Mercedes and Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the surviving spouse, or Mercedes and

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Gregoria Ventura as nearest of kin, or Juana Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent both interests. PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana Cardona and Miguel Ventura is hereby DISMISSED. SO ORDERED.

G.R. No. L-48840 December 29, 1943 ERNESTO M. GUEVARA, petitioner-appellant, vs.ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees. Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased — to wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara — and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law. It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020. He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete settlement of her usufructurary right.1awphil.net He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue: A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora. A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante. Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueño de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad." On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara

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and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone. On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate. Whether the various legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father. In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the will. But a little over four years after the testor's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of appeals sustained that theory. Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara.

I We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial court, contains the following pertinent provisions:

Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by

appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the executor named in the will. Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a will, shall within thirty days after he knows of the death of the testor, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testor, present such will to the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it. Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand dollars. Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he delivers the will.

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940. The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.) It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and compel

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the probate of will, the law punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to prision and kept there until he delivers the will. The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons:

The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and that therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion (Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:

Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among

themselves, as they may see fit, without proceedings in court.

The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letter of administration." It does not say that in case the decedent left a will the heirs and legatees may divide the estate among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of administration are two different things, altho both may be made in the same case. the allowance of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they so away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they had knowledge of the existence and of the provisions of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to the court for probate. Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the

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proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reinvindicacion or partition. We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent. The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal this Court said:

The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among themselves.

In resolving that question this Court said: In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude that the lower court had some evidence to support its conclusion.

Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not presenting the will to the court for probate and by

claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring her to present the will to the court for probate. In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly approved by this Court in the Leaño case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avanceña, held:

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate succession. 2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court. (Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court. The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she

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was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff. Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the law. It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.

II This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action. The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon. A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has been paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land. And we cannot

brand such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal therefrom. B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:

The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant. The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that after paying all the debt of their father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system does not have the effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these circumstances, she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara.

In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in question

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from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that after paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited. Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the southern half of said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of his assuming the obligation to pay all the debts of the deceased. Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the

pronouncements made in part II of this opinion. No finding as to costs in any of the three instances.

ART. 817

G.R. No. L-22595 November 1, 1927 Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee, vs.ANDRE BRIMO, opponent-appellant. The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.

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The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered.

.R. Nos. L-3087 and L-3088 July 31, 1954 In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs.In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator-appellee. This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15 October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken from said order denying the probate of the will and this Court held the evidence before the probate court

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sufficient to prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court, Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N). There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China. As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of ten years. As to the lost will, section 6, Rule 77, provides:

No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the

hearing of this alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory,Id.); that he knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.). Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948),

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before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.). If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true. Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t. s. n., Id.). If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese. Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy

thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino. Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n.,Id.) in his office at the Cebu Portland Cement in the China Banking Building on Dasmariñas street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with

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him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.). The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6). As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides:

Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

Section 2 provides: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.

The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the office of Consul

General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China, which reads as follows:

ORDER: SEE BELOW

The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the Civil Section of the Municipal District Court of Amoy, China.

(Exhibit N-13, p. 89 Folder of Exhibits.). does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the

HUANG KUANG CHENGClerk of Court

CHIANG TENG HWAJudge

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probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. The decree appealed from is affirmed, without pronouncement as to costs.

ART. 818

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

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna)

Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna. The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other

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cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322). Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct. But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950). WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

ART. 821

G.R. No. L-7647 March 27, 1914 DOMINGO CALUYA, petitioner-appellant, vs.LUCINA DOMINGO, respondent-appellee. This is an appeal from a judgment of the Court of First Instance of the Province of Ilocos Norte denying the probate of a will. The learned court below based its judgment upon three grounds. The first one was that, although the testator

had signed by mark, it nowhere appeared in the will who had written the signature or that it had been written at his request. The second, that the witness Antonino Pandaraoan could not really have signed the attestation clause because, at the time it was executed, he was attending a session of the municipal council of Piddig as a member thereof. Third: That as to the other witness, Segundino Asis, the will mentioned and confirmed a sale of land to him by the testator, and he being thereby an interested party his testimony could not be believed. We do not believe that any of the objections are well founded and the judgment refusing its probate must, therefore, be reversed. Section 618 of the Code of Civil Procedure provides in part:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. . . .

It is nowhere required that, where the testator is unable to write, the fact that his signature was written by some other person, at his request and express direction, should appear in the body of the will itself. In the case of Barut vs. Cabacungan (21 Phil. Rep., 461, 463) we held the following:

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that is not essential to the validity of the will. Whether one person or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay it down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the person who signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four. Nor is such requirement found in any other branch of the law. The name of a person who is

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unable to write may be signed by another, by express direction, to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his pen name also. As a matter of policy it may be wise that he did so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the status expressly declares is valid.

The section above quoted also provides that "the attestation clause shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of the witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided." Not only does the attestation clause comply with the requirements of this section, but it appears clearly proved in evidence that the name of the testator was signed by another person at his request and under his direction and in his presence and in the presence of the witnesses to the will. Moreover, as appears from the last clause of the section, if the attestation clause is defective, or even absent, the will is nevertheless valid provided it is satisfactorily proved that it was in fact signed and executed as provided by law. As to the second objection, namely, that Antonino Pandaraoan could not have signed the will as a witness thereto, as stated in the attestation clause, because he was attending a meeting of the municipal council of Piddig at the time the will is alleged to have been executed, we believe this also to be without merit. It does not appear in the evidence of the opposition that the witness Pandaraoan was attending a meeting of the municipal council of Piddig from something like 10 o'clock till 12.30 o'clock of the day on which the will was executed ands that the will was executed sometime between 10 and 12 o'clock. To much weight, however, can not be given to the testimony relative to the precise time of the execution of the will. The barrio of Piddig is only a short distance from the house in which the will was executed and it would have taken but a short time to

cover the distance. the witness Pandaraoan himself testified directly and positively that, after having left the meeting of the municipal council, he went to the house of the testator by appointment and there signed the will as stated in the attestation clause. The other witnesses to the will support this declaration. Not only this, but the notary public who drew up the will and who translated it to the testator and who was present at the time of its execution, declared and testified that the witnesses whose names appear upon the will were present at the time it was executed by the testator and that they signed the same at his request and in his presence and in the presence of each other. All of the witnesses to the will unite in declaring that they were there present at the time the will was executed and that they signed as witnesses in the presence of the testator and of each other. The mere fact that there was a session of the municipal council of Piddig about the same time that the will was executed is not necessarily conclusive against the fact that Antonino Pandaraoan was present and signed as a subscribing witness as he declares. Mistakes in time are easily made among witnesses who measure time not so much by clocks or watches as by the sun. Antonino Pandaraoan testified that the municipal council began its session about 10 o'clock; that in order to attend the execution of the will, as he had agreed with the notary public he would do, he was obliged to leave the session before it terminated; that he so left the session, mounted a horse and arrived at the house of the testator at about 12 o'clock, in time to take part in the execution of the ill as stated in the attestation clause. We do not believe that the clear and positive testimony of the witnesses to the will and of the notary public is overcome by the evidence offered in opposition to the probate. As to the third ground upon which the court based its decision; namely, that the will having mentioned and confirmed a sale of land to Segundino Asis, one of the witnesses to the will, while not rendering the will entirely invalid, throws great doubt upon the legality of its execution and especially the testimony of said witness relating thereto. Section 622 provides:

If a person attests the execution of a will, to whom or to whose wife or husband, or parent, or child, a beneficial devise, legacy, or interest, of or affecting real or personal estate, is given by such will, such devise, legacy, or interest shall, so far only as concerns such person, or the wife or husband, or parent or child of such person, or anyone claiming under such person or such wife or husband, or parent or child, be void, unless there are three other competent witnesses to such will, and such person so attesting shall be admitted as a witness as if such devise, legacy, or interest had not been made or given. But a mere charge on the real or personal estate of the testator, for the payment of debts, shall not

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prevent his creditors from being competent witnesses to his will.

As will readily be seen on reading this section, nothing in the will before us relative to the sale of land to Segundino Asis creates such an interest therein as falls within the provisions thereof. Indeed, no interest of any kind was created by the will in favor of Segundino Asis, nor did it convey or transfer of any interest to him. It simply mentioned a fact already consummated, a sale already made. Even if, however, the will had conveyed an interest to Segundino Asis, it would not have been for that reason void. Only that clause of the will conveying an interest to him would have been void; the remainder could have stood and would have stood as a valid testament. We are confident from a thorough examination of the record that a fair preponderance of the evidence is in favor of the proponents, and there being no legal impediment to the probate the court erred in refusing it. The judgment appealed from is hereby reversed and the cause remanded to the court whence it came with instructions to legalize and probate the will in accordance with the petition.

ART. 828

G.R. No. 76464 February 29, 1988 TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO,petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents. This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help. On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it had not. Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor. Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners. Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent

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court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked. There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana. The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills: or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned

by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned. The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay. At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations ...." 4 The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is untenable. The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, Identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites. For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment

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on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued. WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private respondents. This Decision is IMMEDIATELY EXECUTORY. SO ORDERED.

ART. 832

.R. No. L-2538 September 21, 1951 Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs.LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants. This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000. Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein

petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918. On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191. II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918. III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief. IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law.

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V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself. VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from the decease. These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision. A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or

not is also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors. It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this opposition, the court disallowed the will. If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen. Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance

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of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest. The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918. Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling. There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief . While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search we

have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in the manner required for a will. SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)

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We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the "application of rules where second will is invalid", among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330). But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said original. There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original. If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he

gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur. Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799). The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.) This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that

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destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate. The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will. The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth. Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1â

G.R. No. L-11823 February 11, 1918 CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants, vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants. On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city of Manila for allowance as the will of Simeona F. Naval, who died in said city two days previously, a document executed by her of February 13, 1915, and in which he was appointed executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor, it was denied on the ground that said document was not duly executed by the deceased as her last will and testament, inasmuch as she did not sign it in the presence of three witness and the two witnesses did not sign it in the presence of each other. Thereafter the nieces and legatees of the same deceased filed in the same court for allowance as her will, another document executed by her on October 31, 1914, and,

consequently, the case was registered under another number, which was No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, could not be allowed, because of the existence of another will of subsequent date, executed during her lifetime by the same Simeona F. Naval, and because said will has been revoked by another executed subsequently by her during her lifetime, and further, because sail will has not been executed with the formalities required by existing laws. Trial having taken place, at which evidence was adduced, the court on February 8, 1916, issued an order, admitting said second document and ordering its allowance as the last will and testament o said deceased. From said order the opponents appealed to this court and transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the following: 1. The finding of the court that the will of October 31, 1914, has not been revoked by that of February 13, 1915; 2. The act of the court in permitting the petitioner to institute and proceed with the proceedings relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings had already been had in the other case No. 13386 and final judgment rendered therein; and 3. The act of the court in denying the motion for continuance of the trial on the allowance of the will of October 31, 1914, which motion was presented for the sole purpose of introducing evidence to show the falsity of the signature appearing in said will and submitting said signature to the Bureau of Science for analysis. The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on the ground that is was not executed in such form that it could transmit real and personal property, according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will. From the evidence it appears, as we have already stated, that the trial court declared that the first document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not be allowed, on the ground that it was not executed with the requisites and formalities prescribed by law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by another valid subsequent will, if the testator does not state in the later will his desire that the former should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623 of the Code of Civil Procedure, which provides that no will shall be revoked, except by implication of law, otherwise than

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by some will, codicil, or other writing executed as provided in case of wills. Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the first document presented as the will of the deceased Simeona F. Naval, could have the effect of revoking that which was presented afterwards by the petitioners as executed by the same deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and indispensable that the later will, that is, that first presented for allowance, should be perfect or valid, that it, executed as provided by lay in case of wills. It also appears from the record that the opponents themselves maintained that said later will, that is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and the Court of First Instance of Manila has so held in disallowing said documents as the will of the deceased. So that it very evident that the second will presented, that is, that of October 31, 1914, was not and could not have been revoked by the first, and the court was not in error in so holding in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known doctrines and opinions of jurists in support of what has already been stated. As to the second error assigned by the opponents, we believe it sufficient to refer to what the court below stated in the judgment appealed from. It is as follows:

The court finds no incongruency in the presentation of a prior will when another will of subsequent date has been disallowed. Disregarding the fact that the petitioners in this case were not those who presented the will in No. 13386, in which the petition was presented by the same D. Perfecto Gabriel as executor, it is proper to take into account that the object of a petition for allowance is to ask for an order declaring that a will has been executed in accordance with the requisites and formalities required by law. This is a question for the court to decide and is out of the control of the party who presents the will. The allowance or disallowance of a will by a competent court depends upon whether the evidence adduced at the trial shows or does not show that the formalities required by law have been complied with, and this cannot be determined in advance, as a general rule, by the person who presents the testament. for he has not always concurred in or seen the execution of the will. If, therefore, the personal who presents a will and asks that if be allowed does not secure its allowance, and he has in his possession another will, or has information that another exists, he does not contradict himself by asking for the allowance of the will of earlier date merely because the later will was declared invalid by the proper court. If in this case there is any who adopts a contradictory position, it is the

respondent himself, inasmuch as in case No. 13386 he alleged, as a ground for the disallowance of the will then presented, that it was not executed in accordance with the law, and now he maintains the contrary, for he claims that said will revoked that which is now presented.

With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that when the examination of the witness, Cristina Samson, was finished and the court told Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more proof, although he added that he would ask the court to grant him permission to send the will of 1914 to the Bureau of Science, which petition was objected to by the attorney for the proponents and denied by the court. Immediately thereafter the attorney for the opponents asked for the continuance of the trial, which was also denied by the court, after objection was made by the proponents. The attorney for the opponents excepted to said ruling. Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the terms in which it was made to the court, after ha had stated that he had no more evidence to present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no exception was taken to the order to the order denying this motion, and although the attorney for the opponents excepted to the order denying the motion for continuance of the trial, such exception was completely useless and ineffective for the purpose of alleging before this court that the trial court erred in that respect, for said resolution, being one of those left to the discretion of the court in the exercise of it functions, according to section 141 of the Code of Civil Procedure, it could not be the subject of an exception, unless the court, in denying said motion, abused its discretional power and thereby prejudiced the essential rights of the respondents, which is not the case here. The error which, in addition to the first two already mentioned, has been assigned by the opponent and appellant, Monica Naval, and refers, according to her, to the court's action in declaring that the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was not executed in such manner and from that it could transmit real and personal property, according to the provisions of section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause of said will. First of all, it is not true that the court made such statement in the terms given in said assignment of error, that is, it is not true that the court declared that, because said will was not executed in the form required by law in order that it may transmit real and personal property, according to the provisions of section 618, the disallowance of said will also had the effect of annulling the revocatory clause therein contained. In the order appealed from there is no declaration or conclusion made in these terms. The court did not say that the annulment of the revocatory clause in said will was the

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effect or consequence of the fact that it was not allowed on the ground that it was not executed in the form required by law in order that it may transmit real and personal property. Referring to the construction, given by the respondent to sections 618 and 623 of the Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will, although the later will has not been allowed by the competent court, it being sufficient that the intention of the testator to revoke the previous will should be clearly expressed, and that, while the requisite of allowance is necessary in order that it may transmit property from one person to another, it is not necessary in order that it might procedure other effects, for example, the effect of a revocatory clause, or a clause of aknowledgment of a child, — what the court declared, we repeat, was that although the revocation of a will should have been effected, not by means of another will or codicil, but by mans of a document, as authorized by said section 623, which document should have the requisites and conditions fixed in section 618, the presentation of the document to the court was necessary in order that the latter might allow it, by declaring that it was executed with the formalities required by law for the execution of a will, and finally concluding that, just as to, is to be proved that the requisites of section 618 have been complied with in order that a will may be of value through its allowance, so without such allowance the revocatory clause like the other provisions of the will, has no value or effect except to show extraneous matters, as, for example, the acknowledgment of natural children, of some debt or obligation. In such case, the document could produce effect, but not as will, but simply as a written admission made by the person executing it. And It is beyond doubt that the revocatory clause contained in a document, like the present, which contains provisions proper of a will, as those relating to legacies and distribution of the properties of the testator after his death as well as the appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately connected with it as well as with the will or wills, the revocation of which is declared in said clause; in short, the desire of the testator declared in the revocatory clause is related to the desire of the same testator expressed in the provisions of the testament in which said clause is found and to that which he might have expressed in the testaments which he may have previously executed. There is such relation between the revocatory clause and the will which contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of the law, neither would the revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as her last will and testament, ad declared by the court in its decision of November 19, 1915, in case No. 13386, for which reason its allowance was denied, neither may it be maintained that the revocatory clause contained in said will is the expression of the last will of said deceased. The disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly because

said will was not executed in such from that it could transmit real and personal property, as inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said assignment of error is based, but because it was proved that said will was not executed or signed with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will, according to section 634 of said law; and of course what is invalid in law can produce no effect whatever.

If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the statute. An instrument intended to be a will, but filing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited therein.) A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted to probate before the clause of revocation can have any effect, and the same kind, quality, and method of proof is required for the establishment of the subsequent will as was required for the establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)

But admitting that the will said to have been executed by the deceased Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not been executed, according to the provisions of said section 618 of the Code of Civil Procedure, should be considered as executed by her in order to express her desire, appearing in one of its clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the argument adduced by the appellant, Monica naval, in support of said assignment of error — neither could it be maintained that, the allowance of said will having been denied by the court on November 11, 1915, said revocatory clause subsists and the intention expressed by the testratrix therein is valid and legally effective, for the simple reason that, in order that a will may be revoked by a document, it is necessary, according to the conclusive provisions of section 623 of said procedural law, that such documents be executed according to the provisions relating to will in section 618, and the will in question, or, according to the respondent, the so-called document, was not executed according to the provisions of said section, according to the express finding of the trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is now final and executory. Therefore, the disallowance of said will and the declaration that it was not executed according to the provisions of law as to wills, produced the effect of annulling said revocatory clause. In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis

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(114 Mass., 510, 512)m which, according to the appellant herself, was in the following terms:

If it be shown that a later will was duly executed and attested, containing a clause expressly revoking former will nothing else appearing as to its contents, it is nevertheless good as a revocation, but it can only be made available by setting it up in opposition to the probate of the earlier will.

In the decision of said case the finding referred to be by the appellant appears not to have been made by the Supreme Court of Massachusetts. The syllabus of said decision says:

When a will revoking a former will is in existence, it must be established in the Probate Court; but when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will revoked by it.:

And in the body of the decision there is a declaration, to which the appellant must have desired to refer in her brief, which declaration says:

If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will,. . .

The facts of the case in which this decision was rendered are different from the facts of the case at bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as her last will, to the allowance of which another son objected, alleging that said will had been revoked by another executed by the same deceased subsequent to the will that was filed, and that it had been fraudulently destroyed or taken by his brother, the proponent and his wife, or by one of them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will said to have been subsequently executed by the testatrix and in which, according to the oppositor, the clause revocatory of the former will appeared, was not presented by said oppositor, while the previous will was, in the contrary, filed for allowance by the son of the testratrix, who appeared to be favored therein, said oppositor having alleged that the subsequent will, that is, that containing the revocatory clause, had been drawn, subscribed and executed in accordance with the provisions of the law, a fact which he was ready to prove just as he was ready to prove that it had been destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the case at bar, the subsequent will containing the revocatory clause of the previous will executed by the deceased Simeona F. Naval was presented to the court for allowance and it was disallowed — a fact which gave

opportunity to the legatees of said deceased to present a previous will executed by her on October 31, 1914, and said two wills having been successively presented, evidence as to them was also successively adduced for their allowance by the court. Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (supra), to the effect that a subsequent will containing a revocatory clause of previous wills, constitutes a valid revocation and may be used in objecting to the allowance of the previous will, even when it is not possible to obtain proof of the remainder of the contents of said subsequent will, refers to the case in which the latter had been taken away, destroyed or suppressed, and it was impossible to present it for allowance, but requires for that purpose that it be proved that said subsequent will has been executed, attested, and subscribed in due form and that it contained, furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its opinion, thus began by saying:

By our law, no will can be revoked by any subsequent instrument, other than a "will, codicil or writing, signed, attested and subscribed in the manner provided for making a will." And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be tried by a direct proceeding instituted for the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)

It results, therefore, that while perfect parity does not exist between the case decided by the Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is not before us, it is wholly unquestionable that, whether the case deals with a subsequent will revocatory of a previous will, which may possibly be presented to a probate court for allowance, or of a subsequent will, also revocatory of a previous will, which could not be presented for allowance, because it has been taken or hidding, or mislaid — in order that such will may constitute a valid revocation and be utilized in the second case, although the remaining provisions may not be proven, in opposition to the allowance of the previous will, it is necessary to prove that it was executed, attested, and subscribed in due form, and, of course, also that it contained a clause expressly revoking the previous will, or, what is the same thing, that said subsequent will has been executed according to the provisions relating to wills, as expressed in section 623 of the procedural law in force. There can be no doubt whatever that this applies when the revocation had been made to appear in a writing or document susceptible of presentation for allowance, like the so-called will of the deceased Simeona F. Naval, dated February 13, 1915, and considered by said respondent and appellant as a mere document of revocation, for, as already seen in said decision invoked by her, the requisite as to signing, attesting, and subscribing in the form, required by law for the execution

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of wills in order that it may revoke a previous will, is also required in a will as well as in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that its validity should be proved in a direct proceeding, instituted for the purpose in a probate court. In the case at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and testament, dated February 13, 1915, has been presented for allowance; it validity has been proved by means of said procedure in the Court of Probate of Manila, and that court denied its allowance, on the ground that the document in question had not been duly executed by the deceased, as her last will and testament, because she did not sign in the presence of three witnesses, and two of these witnesses did not sign in the presence of each other, or what is the same thing, that said document has not be attested and subscribed in the manner established by law for the execution of will, or, in other words, as provided by law in case of wills, as stated by section 623 of said procedural law, and this resolution was acquiesced in, as already stated, by the respondents in this case, and is, therefore, final and executory. In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of our procedural law and article 739 of the Civil Code, and the will executed by the deceased Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions, by the will presented and alleged as executed by the same deceased subsequently on February 13, 1915, the allowance of which was denied by the Court of First Instance of Manila, the court below was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as the last will and testament of said deceased. Wherefore, the order appealed from is affirmed, with the costs of this instance against the appellants. So ordered.

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