wills cases csu

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I

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THEHOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTINGTHE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICEWAS 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 or the partition in favor ofSAGRADO LABRADOR which is the fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one hectare, and theboundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and theboundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignmentbelonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time forme being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which wereand had been bought or acquired 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 father who am making the

apportionment and delivering to each and everyone of them the said portion and assignment so that there shallnot be any cause of troubles or differences among the brothers and sisters.

IISecond Page

And this is the day in which we agreed that we are making the partit ioning and assigning the respectiveassignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and thisdecision and or instruction of mine is the matter to be followed. And the one who made this writing is no otherthan 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 compliedwith in order that any differences or troubles may be forestalled and nothing will happen along these troublesamong 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 theother kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall benothing that anyone of them shall complain 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 fruitsof our earnings of the two mothers of my children, there shall be equal portion of each share amongthemselves, 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 thatthis is what should be complied with, by all the brothers and sisters, the children of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressedwith 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 firstparagraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the respectiveassignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and thisdecision and or instruction of mine is the matter to be followed. And the one who made this writing is no other


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than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be inthe will itself and executed in the hand of the testator. These requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement

among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date ofexecution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to theprejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "anact whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, totake effect after his death."

Respondents are in error. The intention to show 17 March 1968as the date of the execution of the will is plain from the tenor of thesucceeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labradorwho plainly knew that what he was 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 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 P5,000 representing the redemption price as erroneous, respondent court's

conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they wereactually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners,thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordancewith 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 ofMelecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sumof Five Thousand Pesos (P5,000.00).

SO ORDERED.

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

Footnotes

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

2 Article 810 provides: A person may execute a holographic will which must be entirely written, dated and signed by the hand of the testator himself.It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

The Lawphil Project - Arellano Law Foundation

Today is Monday, July 21, 2014

Republic of the Philippines

SUPREME COURTManila

EN BANC

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

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,petitioner-appellant,
http://www.lawphil.net/judjuris/juri1990/apr1990/gr_83843_44_1990.htmlhttp://history.back%281%29/http://www.lawphil.net/judjuris/juri1990/apr1990/gr_83843_44_1990.htmlhttp://history.back%281%29/http://www.lawphil.net/judjuris/juri1990/apr1990/gr_83843_44_1990.htmlhttp://history.back%281%29/


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vs.

ILDEFONSO YAP,oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.

rturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the 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 Manila court 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 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 ipinamamana sa aking asawangsi Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center 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 may kakulangan man ay bahala na ang aking asawa ang magpuno upangmatupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executedany 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. 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, Primitivo Reyes, 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 bedone without any witness, provided the document was entirely in her handwriting, signed and 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 dated a holographic will substantially of the tenor abovetranscribed, 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 a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence

of Felina Esguerra, who again read it.


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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 time.

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 sameday, Ildefonso Yap returned 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 and read the will for the 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 had been 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 early morning of the first Monday

of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Collegesoccupying the lower floors and of by the Yap spouses. Physician's help 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 oxygenwere administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and

her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yapmade 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) ifaccording 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 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 precisely wanted its contents to remain a secret during her

lifetime; (d) it is also 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 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 hard to believe that he

returned it without destroying the will, 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 the oppositor'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 testimony of 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 the motion toreconsider; 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 our opinion 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 ofproof.

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, including holographic 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 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."

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 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 signedin the presence 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 ofwills, 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, formal imperfections 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 is submitted to the courts for


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allowance. For that purpose the testimony 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 itsopinion 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 nowitnesses; provided however, that they are "entirely written, dated, and signed 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 knows the handwriting and

signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is

contested, at least three such witnesses shall be required. In the absence of any such witnesses, (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 the holographic will. They may be mistaken in theiropinion of the handwriting, or 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's handwriting, or some expert witnesses, who after comparing the willwith 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, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, anddecide in the face of the document, whether the will submitted 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 guaranty of authenticity

3the testator's handwritinghas disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who haveallegedly 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? 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, orproven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of

knowledge 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 honest and truthful; but they may have been shown a faked document, and having no interest to check theauthenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the

knowledge 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 by exhibiting to them other writings sufficiently similar to those written bythe 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

which he 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 law permit such asituation?

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 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 who depose that they have no reasonable doubt

that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven heshall 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 the surviving 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 universallyadmitted that the 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 state

whether 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


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authentic, or to oppose it, if they think it spurious. 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

their opposition 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 Spainof June 5, 1925, which deniedprotocolization or probate to a document containing testamentary dispositions in the

handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the

face of allegations 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, whole and

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 el testamento 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 esostestamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos

esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo seemplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento

de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuenciaineludible de ello, forzoso es affirmar que el de autos carece 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 que puedan 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 Codeprovisions on the matter.

6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e susfijos 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 daquel que fizo la manda; e por

aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuereconnoscido, el obispo o el 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 testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographicwill, 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 holographic will 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 the contents of a lost or

destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8

Under 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 evidencepresented 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 the first, the onlyguarantee 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 of proof; 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 (four with the notary) deliberately to lie. And then

their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would becalled 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 not least, they can not receive

anything on account of the will.


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

way: after making a clever or passable 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 incourt they would 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 the

document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one ofthem need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery wouldbe 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 Civil Law.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, 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 handwriting which they allegedly saw, an opinion which can not be testedin 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 the deceased should show herwill 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 its execution to her husband Ildefonso Yap. And this leads to

another point: if 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: 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, we think the evidence

submitted by herein petitioner is so tainted with improbabilities and inconsistencies 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.

Footnotes

1Now a member of the Court of Appeals.

2The contents of the alleged will are for the purposes of this decision, immaterial.

3"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del testador."

(Scaevola, Codigo Civil, Tomo 12, p. 348.)

4V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil Espaol

(1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.

5

V. Sanchez Roman Op. Cit. Vol. 6, p. 357.6Manresa, Codigo Civil, 1932, Vol. 5, p. 481.

7We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to our

New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e., thoseknown to the Spanish Civil Law, before Act 190.

8Perhaps it may be proved by a photographic or photostatic copy. Evena mimeographed or carbon copy; or

by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited

and tested before the probate court.

9We are aware of some American cases that admitted lost holographic wills, upon verbal testimony. (Sec. 41,


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American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway it is safer to

follow, in this matter, the theories of the Spanish law.

10Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title. The validity ofthese wills depends, exclusively on the authenticity of handwriting, and if writing standards are not

procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is

questionable whether the recreation of the holographic testament will prove wise." (Lawyer's Journal, Nov.30, 1950, pp. 556-557.)

11Intestate of Suntay, 50 Off. Gaz., 5321.




SUPREME COURTManila

FIRST DIVISION

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

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

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J .:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for

the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
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testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by theappellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias andEphraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce

the will within twenty days of the death of the testator as required by Rule 75, section 2 ofthe Rules of Court;

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

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced,otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested asrequired by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc.No, 8275). Their motion was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved againto 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 decedent Ricardo B.Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlikeordinary wills.

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

The appellees then filed a motion for reconsideration on the ground that the order wascontrary to law and settled pronouncements and rulings of the Supreme Court, to which theappellant in turn filed an opposition. On July 23, 1979, the court set aside its order ofFebruary 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla.The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, acopy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter ofholographic wills the law, it is reasonable to suppose, regards the document itself as thematerial proof of authenticity of said wills.

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

original of the will could not be located shows to our mind that the decedent had discardedbefore his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it iscontended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does notinvolve question of fact and alleged that the trial court committed the following assigned errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAYNOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED


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BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be proved by means

of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance ofthe will by the court after its due execution has been proved. The probate may be uncontested or not. Ifuncontested, at least one Identifying witness is required and, if no witness is available, experts may be resortedto. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost ordestroyed and no other copy is available, the will can not be probated because the best and only evidence is thehandwriting of the testator in said will. It is necessary that there be a comparison between sample handwrittenstatements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic willmay be allowed because comparison can be made with the standard writings of the testator. In the case of Gamvs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographicwill may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itselfmust be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of

authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic orphotostatic copy. 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 probate court," Evidently,the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then theauthenticity of the handwriting of the deceased can be determined by the probate court.

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

SO ORDERED.

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




SUPREME COURTManila

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.
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Vicente J. Cuna and P.S. Singson for appellee.

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

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

City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probateof a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957,Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix;

that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic

will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceasedCesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month,

more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness

testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as thehandwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the

special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale

(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two

residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; thatsaid witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in thehandwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in

the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix;

that said witness, in answer to a question of his counsel admitted that the holographic will was handed to himby the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the

same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar

with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in theaffirmative and when he was asked again whether the penmanship referred to in the previous answer as

appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is

hers"; that it was also established in the proceedings that the assessed value of the property of the deceased inLuskot, 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 improperpressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the

instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on

November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses

who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and becausethe lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the

handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's

authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses

to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the

handwriting and signature of the testator explicitly declare that the will and the signature are in the

handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it

necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more

than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the

handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the

execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that theexistence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not


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merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and

signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and

the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if sofamiliarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article

811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it

necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing,

that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidenceto 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 ifno contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;

Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only inthe case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills

is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), andthe rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", whichreveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the

prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may

consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of thoseproduced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in

fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of

the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis

Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de

que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que leilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente

las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de

transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario paramayor 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 testigosy un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de

averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime

conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que sonpreguntados.

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, pararesponder debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a

party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay

witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not

mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said

article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce

additional evidence, including expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin,with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No

costs.


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




SUPREME COURTManila

FIRST DIVISION

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 certiorariof the decision of the Court of Appeals1and its resolution denying

reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the

authenticity of testators holographic will has been established and the handwriting and signature therein(exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of

the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his

evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon thefacts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is

reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules

of Court). Judgment may, therefore, be rendered for appellant in the instant case.

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

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

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic

will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a

petition3for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mindwhen she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person

of the testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of

her death.4
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On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition to the petition for probate, alleging

that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an

interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If

the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottomafter the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the

handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries,

or through fraud and trickery.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 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,8and 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.

ugusto 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 presentedbear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the

handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence isoffered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the

decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available.

atilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death

of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those

eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used

to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercialbuildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in

posting the records of the accounts, and carried personal letters of the deceased to her creditors.

atilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic

will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the

dispositions therein, the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, andhandled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a

result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic

will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

The fifth witness presented wasMrs.Teresita Vedad, an employee of the Department of Environment and Natural

Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar

with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasturepermit.

Finally,Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was infact 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:


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Instruction

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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


August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay


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 of Evangeline 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 decision9ruling that the appeal was meritorious. Citing the decision in

the case ofAzaola vs.Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, theCourt of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of

our present civil code can not be interpreted as to require the compulsory presentation of three witnesses toidentify the handwriting of the testator, under penalty of having the probate denied. Since no witness may


17/28

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 threewitnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can

declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the

handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even ifso familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule ofparagraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second

paragraph of article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it

necessary, expert testimony may be resorted to.

As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the

same thing, that no competent witness may be willing to testify to the authenticity of the will), and providesfor 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 Cabangvs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the

requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence

of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art.805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of

three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it

necessary", which reveal that what the law deems essential is that the court should be convinced of the will's

authenticity. Where the prescribed number of witnesses is produced and the court is convinced by theirtestimony 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 ofinquiry, for the state is as much interested as the proponent that the true intention of the testator be carried

into effect.

ParaphrasingAzaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811

of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify

the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in

the execution of the holographic will. And the rule requiring the production of three witnesses is merelypermissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty

is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true

intention of the testator be carried into effect. And because the law leaves it to the trial court to decide ifexperts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence,

until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no

uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of

Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to

probate.

Hence, this petition.

The petitioners raise the following issues:

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

Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present

credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of

the testatrix.


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(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of

Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The

article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly

declare that the signature in the will is the genuine signature of the testator.1wphi1.nt

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a

mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent withthe idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory.

11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar,

the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that

unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An

exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the

handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely

identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that 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 voter's affidavit, which was not even produced as it was no longer available.

atilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan,Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de

Ramonal keep herself busy that time?

A. Collecting rentals.

Q. From where?

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

x x x x x x x x x

Q. Who sometime accompany her?

A. I sometimes accompany her.

Q. In collecting rentals does she issue receipts?

A. Yes, sir.13

x x x x x x x x x

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the

receipts which she issued to them?

A. Yes, sir.

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

A. Matilde vda. De Ramonal.

Q. Why do you say that is the signature of Matilde Vda. De Ramonal?

A. I am familiar with her signature.


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Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the

accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

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

A. In handwritten.14

x x x x x x x x x

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said

what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?

A. Matilde.

Q. To whom?

A. To her creditors.15

x x x x x x x x x

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

"tugon" is this the document you are referring to?

A. Yes, sir.

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A. My Aunt.

Q. Why do you say this is the handwriting of your aunt?

A. Because I am familiar with her signature.16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her

tenants. She did not declare that she saw the deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal

belongings of the deceased but was in the possession of Ms. Binanay. She testified that:

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de

Ramonal left a will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.


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Q. Since when did you have the possession of the will?

A. It was in my mother's possession.

Q. So, it was not in your possession?

A. Sorry, yes.

Q. And when did you come into possession since as you said this was originally in the possession of your

mother?

A. 1985.17

x x x x x x x x x

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore

you have that in your possession?

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

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

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.18

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

children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only

after the death of Matilde Seo Vda. de Ramonal.

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

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

A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building

to collect rentals, is that correct?

A. Yes, sir.19

x x x x x x x x x

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in theword Vda.?

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued to letter D?

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter

D.

A. Yes, sir.


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Q. And there is a retracing in the word Vda.?

A. Yes, sir.20

x x x x x x x x x

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a

document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?

A. Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was

agile. Now, you said she was exhausted?

A. In writing.

Q. How did you know that she was exhausted when you were not present and you just tried to explain

yourself out because of the apparent inconsistencies?

A. That was I think. (sic).

Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In

exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a

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

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the

alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice thehesitancy and tremors, do you notice that?

A. Yes, sir.21

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

testified that:

Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of

22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal?

A. During my stay I used to go with her to the church, to market and then to her transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.

Q. What was your purpose of going to her lawyer?

A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de

Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth.22

x x x x x x x x x

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a


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signature here below item No. 1, will you tell this court whose signature is this?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because

she lived with her since birth. She never declared that she saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to

the husband by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal.24

x x x x x x x x x

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate

children?

A. As far as I know they have no legitimate children.

25

x x x x x x x x x

Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

A. I assisted her in terminating the partition, of properties.

Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?

A. It is about the project partition to terminate the property, which was under the court before.26

x x x x x x x x x

Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the

estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal,whose signature is this?

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27

x x x x x x x x x

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistancewherein you were rendering professional service to the deceased Matilde Vda de Ramonal?

A. I can not remember if I have assisted her in other matters but if there are documents to show that I haveassisted then I can recall.28


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x x x x x x x x x

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Wagaand tell the court whether you are familiar with the handwriting contained in that document marked as exhibit

"S"?

A. I am not familiar with the handwriting.

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

A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose

signature is this?

A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature

is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q. Why do you say that?

A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose signature is this?

A. The same is true with the signature in item no. 4. It seems that they are similar.29

x x x x x x x x x

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in

exhibit S seems to be the signature of Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing

that it seems to be her signature because it is similar to the signature of the project of partition which youhave made?

A. That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of

three witnesses in case of contested holographic will, citing the decision inAzaola vs.Singson,31

ruling that the requirement

is merely directory and not mandatory.

In the case ofAjero vs. Court of Appeals,32

we said that "the object of the solemnities surrounding the execution of wills is

to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and

authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Buton the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the

exercise of the right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if

the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of thedeceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even beforethe death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985,

or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents


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signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms.

Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the

deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceasedexpressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other documentswritten 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 thatof the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of originwith instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will

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

No costs.

SO ORDERED.

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

Footnotes

1In CA-G.R. CV No. 31365, promulgated on October 9, 1995, Justice Pedro A. Ramirez,ponente, Justices

Angelina Sandoval Gutierrez and Conrado M. Vasquez, Jr., concurring, CARollo, pp. 83-92.

2Decision, Court of Appeals Records, pp. 83-93.

3Original Records, Petition, pp. 1-7.

4Ibid., p. 4.

5Original Record, Opposition, pp. 13-17.

6Demurrer to Evidence, pp. 140-155, October 13, 1990.

7Original Records, Order, p. 192.

8Ibid., Notice of Appeal (November 29, 1990), p. 194.

9Court of AppealsRollo, Decision, pp. 83-92.

10

Ibid.11

Pioneer Texturing Corporation vs. National Labor Relations Commission, 280 SCRA 806 [1997];see alsoDirector of Lands vs. Court of Appeals, 276 SCRA 276 [1997]; Cecilleville Realty and Service Corporation

vs. Court of Appeals, 278 SCRA 819 [1997]; Barabada vs. Gustilo, 165 SCRA 757 [1988].

12TSN, September 5, 1990, p. 23.

13Ibid., p. 24.

14TSN, September 5, 1990, pp. 24-26.

15Ibid., pp. 28-29.


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



19TSN, p. 62.

20TSN, pp. 58-59.

21TSN, pp. 64-66.

22TSN, September 27, 1990, pp. 145-147.

23TSN, p. 148.

24

TSN, September 6, 1990, p. 74.25

Ibid.

26TSN, September 6, 1990, pp. 76-77.

27Ibid.

28TSN, September 6, 1990, pp. 79-80.

29TSN, pp. 80-82.

30TSN, September 6, 1990, pp. 83-84.

31Supra.

32236 SCRA 489 [1994].

33Original Record, Exhibit "S", p. 101.

34Ibid., Exhibit "T", p. 103.

35

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




SUPREME COURT

Manila
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FIRST DIVISION

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,

vs.HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, andGREGORIO K. KALAW, respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceasedsister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, forthe probate of her holographic Will executed on December 24, 1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposingmind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rightsof said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitablemonument to perpetuate my memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, onNovember 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will

contained alterations, corrections, and insertions without the proper authentication by the full signature of thetestatrix as required by Article 814 of the Civil Code reading:

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

ROSA's position was that th

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