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G.R. No. L-38338 January 28, 1985IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS

AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS

DE JESUS, petitioners,vs.

ANDRES R. DE JESUS, JR., respondent.Raul S. Sison Law Office for petitioners.Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose

C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXIdisallowing 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 petitionerSimeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointedadministrator. 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 asadministrator, 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 thedeceased 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 writtenby 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 testifiedthat 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 theirdeceased 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 Jesusbecause 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 didnot 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. Shecontends 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 earlierorder 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 asrequired 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 validcompliance 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 tono 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 andArticle 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 CivilCode omitted the phrase Ao mes y dia and simply requires that the

holographic Will should be dated. The petitioners submit that the liberal

construction of the holographic Will should prevail.Respondent Luz Henson on the other hand submits that the purported

holographic Will is void for non-compliance with Article 810 of the New Civil

Code in that the date must contain the year, month, and day of its execution.The respondent contends that Article 810 of the Civil Code was patterned

after Section 1277 of the California Code and Section 1588 of the Louisiana

Code whose Supreme Courts had consistently ruled that the required dateincludes the year, month, and day, and that if any of these is wanting, the


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holographic Will is invalid. The respondent further contends that the

petitioner cannot plead liberal construction of Article 810 of the Civil Codebecause 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 ofWills. 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 inexpressing 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, intestatesuccession 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 requirementsin 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 theformalities 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 beconsidered 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 therequirements 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 oflanguage, 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 purposesought 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 beenexpounded 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 Winsand 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 noquestion as to its genuineness and due execution. All the children of the

testatrix agree on the genuineness of the holographic Will of their mother andthat 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 thedate "FEB./61" appearing on the holographic Will is a valid compliance with

Article 810 of the Civil Code, probate of the holographic Will should beallowed 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 theholographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.


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G.R. Nos. 83843-44 April 5, 1990IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted

by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBALLABRADOR, petitioners-appellants,

vs.

COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUSLABRADOR, 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 ofone Melecio Labrador is dated, as provided for in Article 810 2 of the New

Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, MelecioLabrador 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 thealleged 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 thepetition 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 thatas 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 bydevise 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 isfictitious.

After both parties had rested and submitted their respective evidence, the

trial court rendered a joint decision dated February 28, 1985, allowing theprobate 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 ofP5,000.00 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 theallowance 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 TESTATORMELECIO LABRADOR; and

IITHE 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 WASERRONEOUS.

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. FERNANDEZI First Page

This is also where it appears in writing of the place which is assigned andshared 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 ofmore 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 boundaryon 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 partitionthe fishponds which were and had been bought or acquired by us, meaning


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with their two mothers, hence there shall be no differences among

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 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 partitioningand 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 thiswriting 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 ortroubles 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 thatanyone 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 mychildren, 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 iswhat should be complied with, by all the brothers and sisters, the children of

their two mothers JULIANA QUINTERO PILARISA and CASIANAAQUINO VILLANUEVA Your father who made this writing (WILL), and he is,

MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated,although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect

compliance with Article 810. It is worthy of note to quote the first paragraph ofthe 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 beingin 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. (emphasissupplied) (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 itselfand 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 saidfishpond," 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. Thiswas 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 1968 as the date

of the execution of the will is plain from the tenor of the succeeding words ofthe 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 wasexecuting 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 bedisposed of and of the character of the testamentary act as a means to

control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000representing 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 actuallyselling property belonging to another and which they had no authority to sell,

rendering such sale null and void. Petitioners, thus "redeemed" the propertyfrom 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 respondentsare directed to REIMBURSE the petitioners the sum of Five Thousand Pesos

(P5,000.00).

SO ORDERED.


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G.R. No. L-14003 August 5, 1960FEDERICO AZAOLA, petitioner-appellant,

vs.

CESARIO SINGSON, oppositor-appellee.F. Lavides and L.B. Alcuaz for appellant.Vicente J. Cuna and P.S. Singson for appellee.

REYES, J.B.L., J.:This appeal, taken on points of law from a decision rendered on 15 January

1958 by the Court of First Instance of Quezon City in its Special Proceedings

No. Q-2640, involves the determination of the quantity of evidence requiredfor 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 FranciscoAzaola, 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 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 washanded 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 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 werefurther 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 aforesaiddocumentary evidence is in the handwriting of the testatrix as well as the

signatures appearing in the aforesaid documentary evidence is in thehandwriting 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 thetestatrix. "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 thepenmanship 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 theholographic 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 partof 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 writteneither 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 CivilCode, 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 "didnot 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 producemore 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 holographicwill, 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 thetestator. 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 precedingparagraph, and if the court deems it necessary, expert testimony may be

resorted to. (691a).

We agree with the appellant that since the authenticity of the will was notcontested, 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 opinionthat 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 witnessmay 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 matterbeyond 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, ofcourse, even if the law does not so express) "that the will and the signature


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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 unwillingto 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 beresorted 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 maybe 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 bepresented 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 notbe 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 theirvalidity (Art. 805). Where the will is holographic, no witness need be present

(Art. 10), and the rule requiring production of three witnesses must bedeemed 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 deemsessential 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 itunnecessary 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 carriedinto 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 mayorparte 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 conque el Juez debe de proceder en resoluciones de t ranscendencia 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 averigaury declarar. Para eso se ha escrito la frase del citado ultimo apartado,

(siempre que el Juez lo estime conveniente), haya habido o no testigos ydudaran 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 lasresoluciones 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 expertevidence, 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 CivilCode 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 justicewould be better served, in our opinion, by giving the parties ample

opportunity to adduce additional evidence, including expert witnesses, shouldthe 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 anew trial in conformity with this opinion. But evidence already on record shall

not be retaken. No costs.

G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,vs.

EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA

PATIGAS, respondents.PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of

Appeals1 and its resolution denying reconsideration, ruling:Upon the unrebutted testimony of appellant Evangeline Calugay and witness

Matilde Ramonal Binanay, the authenticity of testators holographic will has

been established and the handwriting and signature therein (exhibit S) arehers, 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 thedefendant files a motion for judgment on demurrer to evidence on the ground


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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, themovant loses his right to present evidence in his behalf (Sec, 1 Rule 35

Revised Rules of Court). Judgment may, therefore, be rendered for appellant

in the instant case.Wherefore, the order appealed from is REVERSED and judgment rendered

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

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and EufemiaPatigas, devisees and legatees of the holographic will of the deceased

Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis

Oriental, Branch 18, a petition3 for probate of the holographic will of thedeceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de

Ramonal, was of sound and disposing mind when she executed the will onAugust 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 andpersonal property was about P400,000.00, at the time of her death.4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed anopposition5 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 SeoVda. 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 whoexecuted 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 handwritingof the deceased, it was procured by undue and improper pressure and

influence on the part of the beneficiaries, or through fraud and trickery.1wphi1.nt

Respondents presented six (6) witnesses and various documentary

evidence. Petitioners instead of presenting their evidence, filed a demurrer6to 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 toEvidence 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 ofevidence 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 thefollowing 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. Thedocuments presented bear the signature of the deceased, Matilde Seo Vda.

de Ramonal, for the purpose of laying the basis for comparison of the

handwriting of the testatrix, with the writing treated or admitted as genuine bythe 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, thevoters' affidavit was not produced for the same was already destroyed and

no longer available.Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de

Ramonal was her aunt, and that after the death of Matilde's husband, the

latter lived with her in her parent's house for eleven (11) years from 1958 to1969. During those eleven (11) years of close association the deceased, she

acquired familiarity with her signature and handwriting as she used to

accompany her (deceased Matilde Seo Vda. de Ramonal) in collectingrentals 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 carriedpersonal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death ofMatilde 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 signaturesin 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 pleadingsand 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


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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 andwas 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 thedeceased. 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 asfollows:

Instruction

August 30, 19781. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 19782. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de RamonalAugust 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de RamonalAugust 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline

R. Calugay(Sgd) Matilde Vda de Ramonal

August 30, 19785. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of

Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am

no longer around.(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

Mama

Matilde Vda de RamonalOn 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 recognizedauthority in civil law, the Court of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are ofthe 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. Sinceno 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 matterbeyond 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, ofcourse, 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 witnessmaybe unwilling to give a positive opinion. Compliance with the rule of

paragraph 1 of article 811 may thus become an impossibility. That isevidently the reason why the second paragraph of article 811 prescribes that

in the absence of any competent witness referred to in the precedingparagraph, 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 mabe 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) wasderived 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 ofordinary 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 thewords "if the court deem it necessary", which reveal that what the law deems


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essential is that the court should be convinced of the will's authenticity.

Where the prescribed number of witnesses is produced and the court isconvinced 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 maystill, 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 muchinterested as the proponent that the true intention of the testator be carried

into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographicwill 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 ofthe 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 ifexperts are still needed, no unfavorable inference can be drawn from a

party's failure to offer expert evidence, until and unless the court expressesdissatisfaction 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 testifiedthat the handwriting and signature in the holographic will were those of the

testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay andwitness Matilde Ramonal Binanay, the Court of Appeals sustained the

authenticity of the holographic will and the handwriting and signature therein,

and allowed the will to probate.Hence, this petition.

The petitioners raise the following issues:(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,

relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that privaterespondents had been able to present credible evidence to that the date,

text, and signature on the holographic will written entirely in the hand of the

testatrix.(3) Whether or not the Court of Appeals erred in not analyzing the signatures

in the holographic will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of theCivil 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 genuinesignature of the testator.1wphi1.nt

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

Code is mandatory. The word "shall" connotes a mandatory order. We haveruled that "shall" in a statute commonly denotes an imperative obligation and

is inconsistent with the idea of discretion and that the presumption is that theword "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 giveeffect 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 thetestator.

It will be noted that not all the witnesses presented by the respondents

testified explicitly that they were familiar with the handwriting of testator. Inthe case of Augusto Neri, clerk of court, Court of First Instance, Misamis

Oriental, he merely identified the record of Special Proceedings No. 427before 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, waspresented 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 busythat time?

A. Collecting rentals.Q. From where?

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

streets.12x 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


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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 MatildeVda. De Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten.14x 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 ofthe 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.15x 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 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", whosehandwriting 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 notdeclare 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 deceasedbut 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 wasoriginally in the possession of your mother?

A. 1985.17

x x x x x x x x xQ. 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 whenshe 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 thewill 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 agilelyand she could go to her building to collect rentals, is that correct?

A. Yes, sir.19

x x x x x x x x xQ. 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 inMatilde is continued towards letter D.


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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 holographicwill. 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. Doyou 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 noretracing; there is no hesitancy and the signature was written on a fluid

movement. . . . And in fact, the name Eufemia R. Patigas here refers to oneof the petitioners?

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questionedsignature 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 theservices 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 thehandwriting 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" datedAgosto 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.23So, 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 adocument.

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 xQ. 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.25x 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 xQ. 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, whosesignature 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


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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 aredocuments to show that I have assisted then I can recall.28

x x x x x x x x xQ. Now, I am showing to you exhibit S which is titled "tugon", kindly go over

this document, Fiscal Waga and tell the court whether you are familiar with

the handwriting contained in that document marked as exhibit "S"?A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matildevda 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 whosesignature is this?

A. The same is true with the signature in item no. 4. It seems that they are

similar.29x 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 Matildevda 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 havemade?

A. That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed thewill to probate and disregard the requirement of three witnesses in case of

contested holographic will, citing the decision in Azaola vs. Singson,31 ruling

that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the

solemnities surrounding the execution of wills is to close the door against badfaith 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 otherhand, 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 thehandwriting 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 thehandwriting 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 handwritingexpert. 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 aredifferent when compared with other documents written by the testator. The

signature of the testator in some of the disposition is not readable. There

were uneven strokes, retracing and erasures on the will.Comparing the signature in the holographic will dated August 30, 1978,33

and the signatures in several documents such as the application letter for

pasture permit dated December 30, 1980,34 and a letter dated June 16,1978,35 the strokes are different. In the letters, there are continuous flows of

the strokes, evidencing that there is no hesitation in writing unlike that of theholographic 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 recordsare ordered remanded to the court of origin with instructions to allow

petitioners to adduce evidence in support of their opposition to the probate of

the holographic will of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt

No costs.

SO ORDERED.


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G.R. No. L-12190 August 30, 1958TESTATE 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 inthe University of Santo Tomas Hospital, leaving properties in Pulilan,

Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manilacourt of first instance with a petition for the probate of a holographic will

allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay

nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay

aking ipinamamana sa aking mga kamag-anakang sumusunod:Vicente Esguerra, Sr. .............................................

5 BahagiFausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................2 Bahagi

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

1 BahagiBeatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay akingipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y

magpapagawa ng isang Health Center na nagkakahalaga ng di kukulanginsa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang

aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan

man ay bahala na ang aking asawa ang magpuno upang matupad ang akingkagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that thedeceased had not left any will, nor executed any testament during her

lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R.

San Jose, Judge,1 refused to probate the alleged will. A seventy-page motionfor reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and

due execution by the statements in open court of Felina Esguerra, PrimitivoReyes, Socorro Olarte and Rosario Gan Jimenez, 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 her husband 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, signedand dated by her. Vicente Esguerra lost no time in transmitting the

information, and on the strength of it, in the morning of November 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, Felina Esguerra (daughter of Vicente), who was

invited to read it. In the afternoon of that day, Felicidad was visited by adistant relative, Primitivo Reyes, and she allowed him to read the will in the

presence 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 third t ime.When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital

for her last illness, she entrusted 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 his well-

known violent temper, she delivered it to him. Thereafter, in the same day,

Ildefonso Yap returned the purse to Felina, only to demand it the next dayshortly before the death of Felicidad. Again, Felina handed it to him but not

before she had taken the purse to the toilet, opened it and read the will forthe last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been

suffering from heart disease for several years before her death; that she hadbeen treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro

and others; that in May 1950 husband and wife journeyed to the United

States wherein for several weeks she was treated for the disease; thatthereafter she felt well and after 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


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household was surprised and alarmed, even the teachers of the Harvardian

Colleges occupying the lower floors and of by the Yap spouses. Physician'shelp was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,

found the patient hardly breathing, lying in bed, her head held high by her

husband. Injections and oxygen were administered. Following the doctor'sadvice the patient stayed in bed, and did nothing the whole day, her husband

and her personal attendant, Mrs. Bantique, constantly at her side. These twopersons swore that Mrs. Felicidad Esguerra Yap made no will, and could

have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons,the most important of which were these: (a) if according to his evidence, the

decedent wanted to keep her will a secret, so that 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 Felina was a confidant of the decedent it is hard to believe that

the latter would have allowed the former to see and read the will severaltimes; (c) it is improbable that the decedent would have permitted Primitivo

Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she

precisely wanted its contents to remain a secret during her lifetime; (d) it isalso improbable that her purpose being to conceal the will from her husband

she would carry it around, even to the hospital, in her purse which could forone reason or another be opened by her husband; (e) if it is true that the

husband demanded the purse from Felina in the U.S.T. Hospital and that the

will was there, it is hard to believe that he returned it without destroying thewill, the theory of the petitioner being precisely that 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 theoppositor's evidence that Felicidad did not and could not have executed such

holographic will.

In this appeal, the major portion of appellant's brief discussed the testimonyof the oppositor and of his witnesses in a vigorous effort to discredit them. It

appears that the same arguments, or most of them, were presented in themotion to reconsider; but they failed to induce the court a quo to change its

mind. The oppositor's brief, on the other hand, aptly answers the criticisms.

We deem it unnecessary to go over the same matters, because in ouropinion the case should be decided not on the weakness of the opposition

but on the strength of the evidence of the petitioner, who has the burden of

proof.The Spanish Civil Code permitted the execution of holographic wills along

with other forms. The Code of Civil Procedure (Act 190) approved August 7,

1901, adopted only one form, thereby repealing the other forms, includingholographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts.

810-814. "A person may execute a holographic will which must be entirelywritten, 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."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 tobe subscribed by the testator and three credible witnesses in each and every

page; such witnesses to attest to the number of sheets used and to the fact

that the testator signed in their presence and that they signed in thepresence of the testator and of each other.

The object of such requirements it has been said, is to close the door against

bad faith and fraud, to prevent substitution of wills, to guarantee their truthand 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, formal imperfections may be brushed aside when authenticity of

the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No.

3 p. 194.)Authenticity and due execution is the dominant requirements to be fulfilled

when such will is submitted to the courts for allowance. For that purpose thetestimony of one of the subscribing witnesses would be sufficient if there is

no opposition (Sec. 5, Rule 77). If there is, the three must testify, 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 opinion as to the genuineness and authenticity of the

testament, and the circumstances its due execution.Now, in the matter of holographic wills, no such guaranties of truth and

veracity are demanded, since as stated, they need no witnesses; provided

however, that they are "entirely written, dated, and signed by the hand of thetestator himself." The law, it is reasonable to suppose, regards the document

itself as material proof of authenticity, and as its own safeguard, since it couldat any time, be demonstrated to be or not to be in the hands of the

testator himself. "In the probate of a holographic will" says the New Civil

Code, "it shall be necessary that at least one witness who knows thehandwriting 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 such witnesses shall be required. In the absence of any suchwitnesses, (familiar with decedent's handwriting) and if the court deem it

necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of theholographic will. They may be mistaken in their opinion of the handwriting, or


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they may deliberately lie in affirming it is in the testator's hand. However, the

oppositor may present other witnesses who also know the testator'shandwriting, or some expert witnesses, who after comparing the will with

other writings or letters of the deceased, have come to the conclusion that

such will has not been written by the hand of the deceased. (Sec. 50, Rule123). And the court, in view of such contradictory testimony may use its own

visual sense, and decide in the face of the document, whether the willsubmitted to it has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition,

and of assessing the evidence are not available. And then the only guarantyof authenticity3 the testator's handwriting has disappeared.

Therefore, the question presents itself, may a holographic will be probated

upon the testimony of witnesses who have allegedly seen it and who declarethat it was in the handwriting of the testator? How can the oppositor prove

that such document was not in the testator's handwriting? His witnesses 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, or proven to be, in the testator's hand. The oppositor

will, therefore, be caught between the upper millstone of his lack ofknowledge of the will or the form thereof, and the nether millstone of his

inability to prove its falsity. Again the proponent's witnesses may be honestand truthful; but they may have been shown a faked document, and having

no interest to check the authenticity thereof have taken no pains to examine

and compare. Or they may be perjurers boldly testifying, in the knowledgethat none could convict them of perjury, because no one could prove that

they have not "been shown" a document which they believed was in the

handwriting of the deceased. Of course, the competency of such perjuredwitnesses to testify as to the handwriting could be tested by exhibiting to

them other writings sufficiently similar to those written by the deceased; but

what witness or lawyer would not foresee such a move and prepare for it?His knowledge of the handwriting established, the witness (or witnesses)

could simply stick to his statement: he has seen and read a document whichhe believed was in the deceased's handwriting. And the court and the

oppositor would practically be at the mercy of such witness (or witnesses) not

only as to the execution, but also as to the contents of the will. Does the lawpermit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of

a lost or destroyed will by secondary evidence the testimony of witnesses,in lieu of the original document. Yet such Rules 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.)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 may be lost or stolen4 an implied admission thatsuch 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 itsidentity to be established by the three witnesses who depose 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 greater degree. It requires that thesurviving spouse and the legitimate ascendants and descendants be

summoned so that they may make "any statement they may desire to submit

with respect to the authenticity of the will." As it is universally admitted thatthe holographic will is usually done by the testator and by himself alone, to

prevent others from knowing either its execution or its contents, the above

article 692 could not have the idea of simply permitting such relatives to statewhether they know of the will, but whether in 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 with the will if they think it authentic, or to oppose it, ifthey think it spurious.5 Such purpose is frustrated when the document is not

presented for their examination. If it be argued that such choice is not

essential, because anyway the relatives may oppose, the answer is that theiropposition will be at a distinct disadvantage, and they have the right and

privilege to comply with the will, if genuine, a right which 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 the Supreme Court of Spain of June 5, 1925, which denied

protocolization or probate to a document containing testamentarydispositions in the handwriting of the deceased, but apparently mutilated, the

signature and some words having been torn from it. Even in the face ofallegations and testimonial evidence (which was controverted), ascribing the

mutilation to the opponents of the will. The aforesaid tribunal declared that, in

accordance with the provision of the Civil Code (Spanish) the will itself, wholeand unmutilated, must be presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo

segundo del articulo 688 del Codigo civil, que para que sea valido eltestamento olografo debera estar escrito todo el y firmado por testador, con

expression del ao, mes y dia en que se otorque, resulta evidente 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


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requisitos, sino que de la expresada redaccion el precepto legal, y por el

tiempo en que el verbo se emplea, se desprende la necesidad de que eldocumento se encuentre en dichas condiciones en el momento de ser

presentado a la Autoridad competente, para au adveracion y protocolizacion;

y como consecuencia ineludible de ello, forzoso es affirmar que el de autoscarece de validez y aficacia, por no estarfirmado por el testador, cualquiera

que sea la causa de la falta de firma, y sin perjuicio de las acciones quepuedan ejercitar los perjudicados, bien para pedir indemnizacion por el

perjuicio a la persona culpable, si la hubiere, o su castigo 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 the Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--Edepues que los herederos e sus fijos ovieren esta manda, fasta ... annos

muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el

juez tomen otros tales tres escritos, que fuesen fechos por su mano daquelque fizo la manda; e por aquellos escriptos, si semjara la letra de la manda,

sea confirmada la manda. E depues que todo esto fuere connoscido, el

obispo o el juez, o otras testimonios confirmen el escripto de la manda otravez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared withspecimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the

deceased in accordance with his holographic will, unless they are shown hishandwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the

loss of the holographic will to be fatal. (Planiol y Ripert, Derecho CivilFrances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that

the execution and the contents of a lost or destroyed holographic will may notbe proved by the bare testimony of witnesses who have seen and/or read

such will.8Under the provisions of Art. 838 of the New Civil Code, we are empowered to

adopt this opinion as a Rule of Court for the allowance of such holographic

wills. We hesitate, however, to make this Rule decisive of this controversy,simultaneously with its promulgation. Anyway, decision of the appeal may

rest on the sufficiency, rather the insufficiency, of the evidence presented by

petitioner Fausto E. Gan.At this point, before proceeding further, it might be convenient to explain why,

unlike holographic wills, ordinary wills may be proved by testimonial evidence

when lost or destroyed. The difference lies in the nature of the wills. In thefirst, the only guarantee of authenticity is the handwriting itself; in the second,

the testimony of the subscribing or instrumental witnesses (and of the notary,

now). The loss of the holographic will entails the loss of the only medium ofproof; if the ordinary will is lost, the subscribing witnesses are available to

authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (fourwith the notary) deliberately to lie. And then their lies could be checked and

exposed, their whereabouts and acts on the particular day, the likelihood thatthey would be called by the testator, their intimacy with the testator, etc. And

if they were intimates or trusted friends of the testator they are not likely to

end themselves to any fraudulent scheme to distort his wishes. Last but notleast, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9

only one man could engineer the fraud this way: after making a clever orpassable imitation of the handwriting and signature of the deceased, he may

contrive to let three honest and credible witnesses see and read the forgery;

and the latter, having no interest, could easily fall for it, and in court theywould in all good faith affirm its genuineness and authenticity. The will having

been lost the forger may have purposely destroyed it in an "accident"

the oppositors have no way to expose the trick and the error, because thedocument itself is not at hand. And considering that the holographic will may

consist of two or three pages, and only one of them need be signed, thesubstitution of the unsigned pages, which may be the most important ones,

may go undetected.

If testimonial evidence of holographic wills be permitted, one moreobjectionable feature feasibility of forgery would be added to the

several objections to this kind of wills listed by Castan, Sanchez Roman and

Valverde and other well-known Spanish Commentators and teachers of CivilLaw.10

One more fundamental difference: in the case of a lost will, the three

subscribing witnesses would be testifying to a fact which they saw, namelythe 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 thehandwriting which they allegedly saw, an opinion which can not be tested in

court, nor directly contradicted by the 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's disbelief. In addition to the dubious circumstances

described in the appealed decision, we find it hard to believe that thedeceased should show her will precisely to relatives who had received

nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her

into amending her will to give them a share, or threaten to reveal itsexecution to her husband Ildefonso Yap. And this leads to another point: if


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she wanted so much to conceal the will from her husband, why did she not

entrust it to her beneficiaries? Opportunity to do so was not lacking: forinstance, 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 lostholographic will, we think the evidence submitted by herein petitioner is so

tainted with improbabilities and inconsistencies that it fails to measure up tothat "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.

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,

vs.

AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO

SUMULONG, intervenor.Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for finaldetermination pursuant to

succession july 82014

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