holographic to witnesses cases

8/12/2019 Holographic to Witnesses Cases

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

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

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANAROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,vs.ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

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

GUTIERREZ, JR., J .:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, PresidingJudge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will ofthe 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 Roxasde Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas deJesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters ofAdministration had been granted to the petitioner, he delivered to the lower court a documentpurporting 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 anotebook 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 ofthe deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is mywin 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 Jesusand Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographicWill of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their motherand positively Identified her signature. They further testified that their deceased mother understood


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English, the language in which the holographic Will is written, and that the date "FEB./61 " was thedate when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing thepurported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance withlaw, (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 couldhave 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 theholographic 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 allegedholographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of theCivil Code. She contends that the law requires that the Will should contain the day, month and yearof 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 toinclude the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxasde 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 thedeceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code whichreads:

ART. 810. A person may execute a holographic will which must be entirely written,

dated, and signed by the hand of the testator himself. It is subject to no other form,and may be made in or out of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the OldCivil Code require the testator to state in his holographic Win the "year, month, and day of itsexecution," the present Civil Code omitted the phrase Ao mes y dia and simply requires that theholographic Will should be dated. The petitioners submit that the liberal construction of theholographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void fornon-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 patternedafter 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 ifany of these is wanting, the holographic Will is invalid. The respondent further contends that thepetitioner cannot plead liberal construction of Article 810 of the Civil Code because statutesprescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.


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This will not be the first time that this Court departs from a strict and literal application of the statutoryrequirements regarding the due execution of Wills. We should not overlook the liberal trend of theCivil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to preventintestacy

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 withthe end in view of giving the testator more freedom in expressing his last wishes, butwith sufficien safeguards and restrictions to prevent the commission of fraud and theexercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities inthe 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) heemphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last willand testament on the ground that any disposition made by the testator is better thanthat which the law can make. For this reason, intestate succession is nothing morethan 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 guardagainst fraud and bad faith but without undue or unnecessary curtailment of testamentaryprivilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliancewith the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof isobviated, 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 beconsidered in the application of any given rule. If the surrounding circumstancespoint to a regular execution of the wilt and the instrument appears to have beenexecuted substantially in accordance with the requirements of the law, the inclinationshould, in the absence of any suggestion of bad faith, forgery or fraud, lean towardsits admission to probate, although the document may suffer from some imperfectionof 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 isnot literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite isactually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this CourtinAbangan v. Abanga40 Phil. 476, where we ruled that:

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


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In particular, a complete date is required to provide against such contingencies as that of twocompeting Wills executed on the same day, or of a testator becoming insane on the day on which aWill 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 inits 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 bythe testatrix herself and in a language known to her. There is also no question as to its genuinenessand due execution. All the children of the testatrix agree on the genuineness of the holographic Willof 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 isfatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficientcompliance 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 itsexecution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undueinfluence and pressure and the authenticity of the Will is established and the only issue is whether ornot the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of theCivil Code, probate of the holographic Will should be allowed under the principle of substantialcompliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SETASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas deJesus is reinstated.

SO ORDERED.

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


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Manila

SECOND DIVISION

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICALABRADOR, and CRISTOBAL LABRADOR,petitioners-appellants,vs.COURT OF APPEALS, 1GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J .:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labradoris dated, as provided for in Article 8102of the New Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in theMunicipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of landdesignated 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 Labradorand Cristobal Labrador, filed in the court a quoa petition for the probate docketed as SpecialProceeding 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 beenextinguished 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 Melecioexecuted a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesusand 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 foronly Five Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for theannulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedlyhad already acquired by devise from their father Melecio Labrador under a holographic will executedon March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premisedon the fact that the aforesaid Deed of Absolute Sale is fictitious.


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After both parties had rested and submitted their respective evidence, the trial court rendered a jointdecision dated February 28, 1985, allowing the probate of the holographic will and declaring null andvoid the Deed of Absolute sale. The court a quohad also directed the respondents (the defendantsin Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing theredemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereonfrom 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 modifiedsaid joint decision of the court a quoby denying the allowance of the probate of the will for beingundated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of theaforesaid 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 MELECIOLABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THELOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSANDPESOS 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

IFirst Page

This is also where it appears in writing of the place which is assigned and shared orthe partition in favor of SAGRADO LABRADOR which is the fishpond located andknown 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 assignmentshare of ENRICA LABRADOR, also their sister, and the boundary in the West is thesea, known as the SEA as it is, and the boundary on the NORTH is assignmentbelonging to CRISTOBAL LABRADOR, who likewise is also their brother. Thatbecause it is now the time for me being now ninety three (93) years, then I feel it isthe right time for me to partition the fishponds which were and had been bought oracquired by us, meaning with their two mothers, hence there shall be no differencesamong themselves, those among brothers and sisters, for it is I myself their fatherwho am making the apportionment and delivering to each and everyone of them the


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said portion and assignment so that there shall not be any cause of troubles ordifferences among the brothers and sisters.

IISecond 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 monthof March, 17th day, in the year 1968, and this decision and or instruction of mine isthe matter to be followed. And the one who made this writing is no other thanMELECIO LABRADOR, their father.

Now, this is the final disposition that I am making in writing and it is this that shouldbe followed and complied with in order that any differences or troubles may beforestalled and nothing will happen along these troubles among my children, and thatthey will be in good relations among themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconuttrees 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 shallcomplain against the other, and against anyone of the brothers and sisters.

IIITHIRD 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, thereshall be equal portion of each share among themselves, and or to be benefitted withall 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 amhere 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 becomplied with, by all the brothers and sisters, the children of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your fatherwho 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 isnot in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It isworthy 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 andassigning the respective assignment of the said fishpond, and this being in the monthof March, 17th day, in the year 1968, and this decision and or instruction of mine isthe matter to be followed. And the one who made this writing is no other thanMELECIO 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 onlyrequirements are that the date be in the will itself and executed in the hand of the testator. Theserequirements are present in the subject will.


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Respondents claim that the date 17 March 1968 in the will was when the testator and hisbeneficiaries entered into an agreement among themselves about "the partitioning and assigning therespective assignments of the said fishpond," and was not the date of execution of the holographicwill; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof tothe 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 hisdeath."

Respondents are in error. The intention to show 17 March 1968as the date of the execution of thewill is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, thewill was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what hewas executing was a will. The act of partitioning and the declaration that such partitioning as thetestator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of thenature of the estate property to be disposed of and of the character of the testamentary act as ameans to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the redemptionprice as erroneous, respondent court's conclusion is incorrect. When private respondents sold theproperty (fishpond) with right to repurchase to Navat for P5,000, they were actually selling propertybelonging 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 possessionof the property for its disposition in accordance with the will. Petitioners therefore deserve to bereimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is herebyREVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. Theprivate respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos(P5,000.00).

SO ORDERED.

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


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Manila

EN BANC

G.R. No. L-12190 August 30, 1958

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

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.Arturo M. Tolentino for appellee.

BENGZON, J .:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of SantoTomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instancewith a petition for the probate of a holographic will allegedly executed by the deceased, substantiallyin these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na angaking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-

anakang sumusunod:

Vicente Esguerra, Sr..............................................

5 Bahagi

Fausto E. Gan.........................................................

2 Bahagi

Rosario E. Gan.........................................................

2 Bahagi

Filomena Alto..........................................................

1 Bahagi

Beatriz Alto

..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamanasa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang HealthCenter na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay maykakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang akingkagustuhan.


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(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not leftany will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,Judge,1refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hencethis appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by thestatements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario GanJimenez, whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,Vicente Esguerra, her desire to make a will. She confided however that it would be useless if herhusband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,who was then preparing for the bar examinations. The latter replied it could be done without any

witness, provided the document was entirely in her handwriting, signed and dated by her. VicenteEsguerra lost no time in transmitting the information, and on the strength of it, in the morning ofNovember 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dateda holographic will substantially of the tenor above transcribed, in the presence of her niece, FelinaEsguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidadwas visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in thepresence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.To these she showed the will, again in the presence of Felina Esguerra, who read it for the thirdtime.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, sheentrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of hiswell-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yapreturned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.

Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it andread the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart diseasefor several years before her death; that she had been treated by prominent physicians, Dr. AgericoSison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the UnitedStates wherein for several weeks she was treated for the disease; that thereafter she felt well andafter visiting interesting places, the couple returned to this country in August 1950. However, her

ailment recurred, she suffered several attacks, the most serious of which happened in the earlymorning of the first Monday of November 1951 (Nov. 5). The whole household was surprised andalarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yapspouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., foundthe patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygenwere administered. Following the doctor's advice the patient stayed in bed, and did nothing thewhole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. Thesetwo persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will onthat day.


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The trial judge refused to credit the petitioner's evidence for several reasons, the most important ofwhich were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, sothat her husband would not know it, it is strange she executed it in the presence of Felina Esguerra,knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felinawas a confidant of the decedent it is hard to believe that the latter would have allowed the former tosee and read the will several times; (c) it is improbable that the decedent would have permitted

Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she preciselywanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purposebeing to conceal the will from her husband she would carry it around, even to the hospital, in herpurse which could for one reason or another be opened by her husband; (e) if it is true that thehusband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hardto believe that he returned it without destroying the will, the theory of the petitioner being preciselythat the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence thatFelicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and ofhis witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most ofthem, were presented in the motion to reconsider; but they failed to induce the court a quo to changeits mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem itunnecessary to go over the same matters, because in our opinion the case should be decided not onthe weakness of the opposition but on the strength of the evidence of the petitioner, who has theburden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms. TheCode of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, therebyrepealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person mayexecute 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 neednot be witnessed."

This is indeed a radical departure from the form and solemnities provided for wills under Act 190,which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and threecredible witnesses in each andevery page; such witnesses to attest to the number of sheets usedand to the fact that the testator signed in their presence and that they signed in the presence of thetestator and of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, toprevent substitution of wills, to guarantee their truth and authencity (Abangan vs.Abangan, 40 Phil.,476) and to avoid those who have no right to succeed the testator would succeed him and be

benefited with the probate of same. (Mendoza vs.Pilapil, 40 Off. Gaz., 1855). However, formalimperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguezvs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will issubmitted to the courts for allowance. For that purpose the testimony of one of the subscribingwitnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three musttestify, if available. (Cabang vs.Delfinado, 34 Phil., 291; Tolentino vs.Francisco, 57 Phil., 742).From the testimony of such witnesses (and of other additional witnesses) the court may form its


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opinion as to the genuineness and authenticity of the testament, and the circumstances its dueexecution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, sinceas stated, they need no witnesses; provided however, that they are "entirely written, dated, andsigned by the hand of the testator himself." The law, it is reasonable to suppose, regards the

document itself as material proof of authenticity, and as its own safeguard, since it could at any time,be demonstrated to beor not to bein the hands of the testator himself. "In the probate of aholographic will" says the New Civil Code, "it shall be necessary that at least one witness who knowsthe handwriting and signature of the testator explicitly declare that the will and the signature are inthe handwriting of the testator. If the will is contested, at least three such witnesses shall berequired. In the absence of any such witnesses, (familiar with decedent's handwriting) and if thecourt deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic will. Theymay be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is inthe testator's hand. However, the oppositor may present other witnesses who also know thetestator's handwriting, or some expert witnesses, who after comparing the will with other writings orletters of the deceased, have come to the conclusion that such will has not been written by the handof the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may useits own visual sense, and decide in the face of the document, whether the will submitted to it hasindeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing theevidence are not available. And then the only guaranty of authenticity3the testator's handwritinghas disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony ofwitnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?How can the oppositor prove that such document was not in the testator's handwriting? Hiswitnesses who know testator's handwriting have not examined it. His experts can not testify,

because there is no way to compare the alleged testament with other documents admittedly, orproven to be, in the testator's hand. The oppositor will, therefore, be caught between the uppermillstone of his lack of knowledge of the will or the form thereof, and the nether millstone of hisinability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but theymay have been shown a faked document, and having no interest to check the authenticity thereofhave taken no pains to examine and compare. Or they may be perjurers boldly testifying, in theknowledge that none could convict them of perjury, because no one could prove that they have not"been shown" a document which they believedwas in the handwriting of the deceased. Of course,the competency of such perjured witnesses to testify as to the handwriting could be tested byexhibiting to them other writings sufficiently similar to those written by the deceased; but whatwitness or lawyer would not foresee such a move and prepare for it? His knowledge of thehandwriting established, the witness (or witnesses) could simply stick to his statement: he has seenand read a document which he believed was in the deceased's handwriting. And the court and theoppositor would practically be at the mercy of such witness (or witnesses) not only as to theexecution, but also as to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed willby secondaryevidence the testimony of witnesses, in lieu of the original document. Yet suchRules could not have contemplated holographic wills which could not then be validly made here.(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)


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Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it maybe lost or stolen4an implied admission that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the judge,

(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses whodepose that they have no reasonable doubt that the will was written by the testator (Art. 691). And ifthe judge considers that the identity of the will has been proven he shall order that it be filed (Art.693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greaterdegree. It requires that the surviving spouse and the legitimate ascendants and descendants besummoned so that they may make "any statement they may desire to submit with respect to theauthenticity of the will." As it is universally admitted that the holographic will is usually done by thetestator and by himself alone, to prevent others from knowing either its execution or its contents, theabove article 692 could not have the idea of simply permitting such relatives to state whether theyknow of the will, but whetherin the face of the document itself they think the testator wrote it.Obviously, this they can't do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying withthe will if they think it authentic, or to oppose it, if they think it spurious.5Such purpose is frustratedwhen the document is not presented for their examination. If it be argued that such choice is notessential, because anyway the relatives may oppose, the answer is that their opposition will be at adistinct disadvantage, and they have the right and privilegeto comply with the will, if genuine, a rightwhich they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of theSupreme Court of Spain of June 5, 1925, which denied protocolization or probate to a documentcontaining testamentary dispositions in the handwriting of the deceased, but apparentlymutilated, the signature and some words having been torn from it. Even in the face of allegationsand testimonial evidence (which was controverted), ascribing the mutilation to the opponents of thewill. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code

(Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce noeffect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo688 del Codigo civil, que para que sea valido el testamento olografo debera estar escritotodo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resultaevidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas omenos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que dela expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea,se desprende la necesidad de que el documento se encuentre en dichas condiciones en elmomento de ser presentado a la Autoridad competente, para au adveracion yprotocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos

carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causade la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados,bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o sucastigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable. .. .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of theSpanish Civil Code provisions on the matter.6


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PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que losherederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, oal juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesenfechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra dela manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo oel juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera

vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testatorshandwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordancewith his holographic will, unless they are shown his handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographicwill to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and thecontents of a lost or destroyed holographic will may not be proved by the bare testimony ofwitnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as aRule of Court for the allowance of such holographic wills. We hesitate, however, to make this Ruledecisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appealmay rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner FaustoE. Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike holographicwills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The differencelies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; inthe second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). Theloss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, thesubscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts onthe particular day, the likelihood that they would be called by the testator, their intimacy with thetestator, etc. And if they were intimates or trusted friends of the testator they are not likely to endthemselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receiveanything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible 9only one man could

engineer the fraud this way: after making a clever or passable imitation of the handwriting andsignature of the deceased, he may contrive to let three honest and credible witnesses see and readthe forgery; and the latter, having no interest, could easily fall for it, and in court they would in allgood faith affirm its genuineness and authenticity. The will having been lost the forger may havepurposely destroyed it in an "accident"the oppositors have no way to expose the trick and theerror, because the document itself is not at hand. And considering that the holographic will mayconsist of two or three pages, and only one of them need be signed, the substitution of the unsignedpages, which may be the most important ones, may go undetected.


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If testimonial evidence of holographic wills be permitted, one more objectionable featurefeasibilityof forgerywould be added to the several objections to this kind of wills listed by Castan, SanchezRoman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would betestifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in

the case of a lost holographic will, the witnesses would testify as to their opinion of the handwritingwhich they allegedly saw, an opinion which can not be tested in court, nor directly contradicted bythe oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge'sdisbelief. In addition to the dubious circumstances described in the appealed decision, we find it hardto believe that the deceased should show her will precisely to relatives who had received nothingfrom it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to givethem a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads toanother point: if she wanted so much to conceal the will from her husband, why did she not entrust itto her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao,a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, wethink the evidence submitted by herein petitioner is so tainted with improbabilities andinconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,Endencia and Felix, JJ.,concur.


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Manila

FIRST DIVISION

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

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

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J .:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant toSection 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 ofRizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance ofletters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, wasopposed 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 toproduce the will within twenty days of the death of the testator as required by Rule75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition ofproperty after death and was not intended to take effect after death, and therefore itwas not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must beproduced, 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 andattested 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.


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On November 13, 1978, following the consolidation of the cases, the appelleesmoved 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 themanagement and improvement of the schools and colleges founded by decedentRicardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidenceunlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in itsorder of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the orderwas 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 setaside its order of February 23, 1979 and dismissed the petition for the probate of thewill of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will islost, 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 thematter of holographic wills the law, it is reasonable to suppose, regards thedocument itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed onJanuary 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapseof more than 14 years from the time of the execution of the will to the death of thedecedent, 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 HolographicWill.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals inwhich 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 appealdoes not involve question of fact and alleged that the trial court committed the following assignederrors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILLMAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HASDISCARDED 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 beproved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of


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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 requiredand, if no witness is available, experts may be resorted to. If contested, at least three Identifyingwitnesses are required. However, if the holographic will has been lost or destroyed and no othercopy is available, the will can not be probated because the best and only evidence is the handwritingof 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 theholographic will may be allowed because comparison can be made with the standard writings of thetestator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and thecontents of a lost or destroyed holographic will may not be proved by the bare testimony ofwitnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shallproduce no effect. The law regards the document itself as material proof of authenticity." But, inFootnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostaticcopy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby theauthenticity of the handwriting of the deceased may be exhibited and tested before the probatecourt," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may beadmitted because then the authenticity of the handwriting of the deceased can be determined by theprobate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion forreconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition toapprove the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.


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Manila

EN BANC

G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA,petitioner-appellant,vs.CESARIO SINGSON,oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant.Vicente J. Cuna and P.S. Singson for appellee.

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

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of

First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination ofthe 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 lastresidence of said testatrix; that Francisco Azaola, petitioner herein for probate of theholographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaolawas made the sole heir as against the nephew of deceased Cesario Singson; that witnessFrancisco 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, witnesspresented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the generalpower of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including anaffidavit (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 saidwitness, Azaola, testified that the penmanship appearing in the aforesaid documentaryevidence is in the handwriting of the testatrix as well as the signatures appearing in theaforesaid documentary evidence is in the handwriting of the testatrix as well as thesignatures appearing therein are the signatures of the testatrix; that said witness, in answerto a question of his counsel admitted that the holographic will was handed to him by thetestatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16on 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 FortunataVda. de Yance, he answered positively in the affirmative and when he was asked againwhether the penmanship referred to in the previous answer as appearing in the holographicwill (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it wasalso established in the proceedings that the assessed value of the property of the deceasedin 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 byundue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the


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need be present (Art. 10), and the rule requiring production of three witnesses must be deemedmerely 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 deemit necessary", which reveal that what the law deems essential is that the Court should be convincedof 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 expertevidence. On the other hand, if no competent witness is available, or none of those produced isconvincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of theCourt, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as theproponent 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 notedCommentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto inducela conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debeacudir 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. Laprudencia 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 mayorgarantia de todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dichoprofano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir alJuez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito lafrase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido ono 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 susignificacion, 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 inferencecan be drawn from a party's failure to offer expert evidence, until and unless the court expressesdissatisfaction 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 merelydirectory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon toconstrue the import of said article, the interest of justice would be better served, in our opinion, bygiving 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 remandedto the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidencealready on record shall not be retaken. No costs.

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


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FIRST DIVISION

[G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners,vs.EVANGELINE R. CALUGAY,

JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents.

D E C I S I O N

PARDO, J.:

Before us is a petition for review on certiorariof the decision of the Court of Appeals[1]and

its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde

Ramonal Binanay, the authenticity of testators holographic will has been established

and the handwriting and signature therein (exhibit S) are hers, enough to probate said

will. Reversal of the judgmentappealed 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 ofCourt). Judgment may, therefore, be rendered for appellant in the instant case.

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

the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.[2]

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, deviseesand legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with

the Regional Trial Court, Misamis Oriental, Branch 18, a petition[3]for probate of the

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

In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, wasof 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 the will was

written voluntarily.

The assessed value of the decedents property, including all real and personal property was

about P400,000.00, at the time of her death.[4]
http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/1999/aug99/123486.htm#_edn1


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On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition[5]to

the petition for probate, alleging that the holographic will was a forgery and that the same is even

illegible. This gives an impression that a third hand of an interested party other than the truehand of Matilde Seo Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will after every

disposition is out of the ordinary. If the deceased was the one who executed the will, and wasnot forced, the dates and the signature should appear at the bottom after the dispositions, asregularly 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.

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

instead of presenting their evidence, filed a demurrer[6]to evidence, claiming that respondents

failed to establish sufficient factual and legal basis for the probate of the holographic will of the

deceased Matilde Seo Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which

reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence

having being well taken, same is granted, and the petition for probate of the document

(Exhibit S) on the purported Holographic Will of the late Matilde Seo Vda. de

Ramonal, is denied for insufficiency of evidence and lack of merits.[7]

On December 12, 1990, respondents filed a notice of appeal,[8]and in support of their appeal,

the respondents once again reiterated the testimony of the following witnesses, namely: (1)

Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal

Rodolfo Waga; and (6) Evangeline Calugay.To have a clear understanding of the testimonies of the witnesses, we recite an account of

their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the

special proceedings for the probate of the holographic will of the deceased was filed. He

produced and identified the. records of the case. The documents presented bear the signature of

the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparisonof the handwriting of the testatrix, with the writing treated or admitted as genuine by the party

against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and

identify the voters affidavit of the decedent. However, the voters affidavit was not producedfor the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was

her aunt, and that after the death of Matildes husband, the latter lived with her in her parents

house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of closeassociation with the deceased, she acquired familiarity with her signature and handwriting as she

used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her
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various tenants of commercial buildings, and the deceased always issued receipts. In addition to

this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts,

and carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanayfurther testified that at the time of the death of Matilde Vda. deRamonal, 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 thesignatures in said will, were that of the deceased.

Fiscal Rodolfo Wagatestified that before he was appointed City Fiscal of Cagayan de Oro,

he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased

in connection with the intestate proceedings of her late husband, as a result of which he isfamiliar with the handwriting of the latter. He testified that the signature appearing in the

holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can

not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of

Environment and Natural Resources, Region 10. She testified that she processed the application

of the deceased for pasture permit and was familiar with the signature of the deceased, since thedeceased 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 thedeceased since birth, and was in fact adopted by the latter. That after a long period of time she

became familiar with the signature of the deceased. She testified that the signature appearing in

the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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


August 30, 1978

3. My jewelrys shall be divided among:

1. Eufemia Patigas


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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


"August 30, 1978

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

around.


August 30, 1978

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


"August 30,1978

Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision[9]ruling that the appeal was

meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.

Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

x x x 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
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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 bewitnesses 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 testators hand; or even if so familiarized, the witness may be

unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of

article 811 may thus become an impossibility. That is evidently the reason why the

second paragraph of article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and

if the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no 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 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 wil l is holographic, no witness

need be present (art.10), and the rule requi r ing production of three witnesses must

be deemed merely permissive if absurd resul ts 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 wills 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.


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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 ru le requir ing the production of three

witnesses is merely permissive. What the law deems essential is that the court isconvinced 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

partys 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 andother 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 MatildeRamonal 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 bythe respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been ableto present credible evidence to prove that the date, text, and signature on the holographic willwere written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographicwill of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code

are permissive or mandatory. The article provides, as a requirement for the probate of a

contested holographic will, that at least three witnesses explicitly declare that the signature in thewill is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is

mandatory. The word shall connotes a mandatory order. We have ruled that shall in astatute commonly denotes an imperative obligation and is inconsistent with the idea of discretionand 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 fortheir benefit will employ means to defeat the wishes of the testator.
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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 explicitlythat they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of

court, Court of First Instance, Misamis Oriental, he merely identified the record of SpecialProceedings No. 427 before said court. He was not presented to declare explicitly that thesignature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify

the signature of the deceased in the voters affidavit, which was not even produced as it was nolonger 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 atPinikitan, 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

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

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one ofthe receipts which she issued to them?

A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.

Binanay?

A. Matilde vda. De Ramonal.

Q. Why do you say that that is a signature of Matilde vda. De Ramonal?

A. I am familiar with her signature.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records ofthe accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?
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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

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

Q. You testified that at the time of her death she left a will. I am showing to you a document with itstitle 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 thewill 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 mothers possession.
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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 ofyour mother?

A. 1985.[17]

x x x

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you andtherefore you have that in your possession?

A. It was not given to me by my mother, I took that in the aparador when she died.

Q. After taking that document you kept it with you?

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.[18]

In her testimony it was also evident that Ms. Binanay kept the fact about the will from

petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of

keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda.de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely and she could go to herbuilding to collect rentals, is that correct?

A. Yes, sir.[19]

x x x

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracingsin 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 towardsletter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?
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A. Yes, sir.[20]

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 monthsfrom 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 toexplain 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 holographicwill. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature

was written on a fluid movement. x x x And in fact , the name Eufemia R. Patigas here refers toone of the petitioners?

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in thealleged 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 theperiod of 22 years. Could you tell the court the services if any which you rendered to MatildeRamonal?

A. During my stay I used to go with her to the church, to the 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 MatildeVda de Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth.[22]
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holographic to witnesses cases

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