G.R. No.

L-14003
August 5, 1960
FEDERICO
AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F.
Lavides
and
L.B.
Alcuaz
for
appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision
rendered on 15 January 1958 by the Court of First
Instance of Quezon City in its Special Proceedings No.
Q-2640, involves the determination of the quantity of
evidence required for the probate of a holographic will.
The established facts are thus summarized in the
decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established
by the petitioner; that on September 9, 1957,
Fortunata S. Vda. de Yance died at 13 Luskot, Quezon
City, known to be the last residence of said testatrix;
that Francisco Azaola, petitioner herein for probate of
the holographic will, submitted the said holographic
will (Exh. C) whereby Maria Milagros Azaola was made
the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified
that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the
same was handed to him and his wife; that the witness
testified also that he recognized all the signatures
appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E),
the special power of the attorney (Exh. F), and the
general power of attorney (Exh. F-1), besides the deeds
of sale (Exhs. G and G-1) including an affidavit (Exh. G2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes;
that said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well
as the signatures appearing therein are the signatures
of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic
will was handed to him by the testatrix. "apparently it
must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked
by counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance,
he answered positively in the affirmative and when he
was asked again whether the penmanship referred to
in the previous answer as appearing in the holographic
will (Exh. C) was hers (testatrix'), he answered, "I
would definitely say it is hers"; that it was also
established in the proceedings that the assessed value
of the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.
The opposition to the probate was on the ground that
(1) the execution of the will was procured by undue
and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did
not seriously intend the instrument to be her last will,
and that the same was actually written either on the
5th or 6th day of August 1957 and not on November
20, 1956 as appears on the will.
The probate was denied on the ground that under
Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the will
and the signature are in the writing of the testatrix, the
probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently
that the body of the will was written in the handwriting
of the testatrix."
The proponent appealed, urging: first, that he was not
bound to produce more than one witness because the
will's authenticity was not questioned; and second, that
Article 811 does not mandatorily require the production
of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity
should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the

following effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
In the absence of any competent witnesses referred to
in the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
(691a).
We agree with the appellant that since the authenticity
of the will was not contested, he was not required to
produce more than one witness; but even if the
genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify
the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have
been present at the execution of a holographic will,
none being required by law (Art. 810, new Civil Code),
it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not
merely a question of finding and producing any three
witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not
so express) "that the will and the signature are in the
handwriting of the testator". There may be no available
witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph
1 of Article 811 may thus become an impossibility. That
is evidently the reason why the second paragraph of
Article 811 prescribes that
in the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no
qualified witness may be found (or what amounts to
the same thing, that no competent witness may be
willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring
that three witnesses be presented if the will is
contested and only one if no contest is had) was
derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). But it can not be
ignored that the requirement can be considered
mandatory only in the case of ordinary testaments,
precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by
law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (Art. 10),
and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results
are to be avoided.
Again, under Article 811, the resort to expert evidence
is conditioned by the words "if the Court deem it
necessary", which reveal that what the law deems
essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and
in fact it should, resort to handwriting experts. The
duty of the Court, in fine, is to exhaust all available
lines of inquiry, for the state is as much interested as
the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of
the Spanish Civil Code of 1889, the noted
Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed.,
p.421), sagely remarks:

La manera como esta concebida la redaccion del

ultimo apartado de dicho precepto induce la conclusion
de que siempre o por lo menos, en la mayor parte de
los casos, el Juez debe acudir al criterio pericial para
que le ilustre acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en los autos del
expediente las declaraciones testificales. La prudencia
con que el Juez debe de proceder en resoluciones de
transcendencia asi lo exige, y la indole delicada y
peligrosa del testamento olografo lo hace necesario
para
mayor
garantia
de
todos
los
interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los
testigos y un modo de desvanecer las ultimas dudas
que pudieran ocurrir al Juez acerca de la autenticidad
que trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre
que el Juez lo estime conveniente), haya habido o no
testigos y dudaran o no estos respecto de los extremos
por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion,
para responder debidamente de las resoluciones que
haya de dictar.
And because the law leaves it to the trial court if
experts are still needed, no unfavourable inference can
be drawn from a party's failure to offer expert
evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of
Article 811 of the Civil Code is merely directory and is
not mandatory.
Considering, however, that this is the first occasion in
which this Court has been called upon to construe the
import of said article, the interest of justice would be
better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem
them necessary.
In view of the foregoing, the decision appealed from is
set aside, and the records ordered remanded to the
Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on
record shall not be retaken. No costs.

G.R. No. 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 Appeals 1 and its resolution
denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been
established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the
probate of the holographic will in question be called for.
The rule is that after plaintiff has completed
presentation of his evidence and the defendant files a
motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has
shown no right to relief, if the motion is granted and
the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf
(Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the
holographic will of the testator Matilde Seo Vda. de
Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine
Salcedo and Eufemia Patigas, devisees and legatees of
the holographic will of the deceased Matilde Seo Vda.
de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition 3 for probate of the
holographic will of the deceased, who died on January
16, 1990.
In the petition, respondents claimed that the deceased
Matilde Seo Vda. de Ramonal, was of sound and
disposing mind when she executed the will on August
30, 1978, that there was no fraud, undue influence,
and duress employed in the person of the testator, and
will was written voluntarily.
The assessed value of the decedent's property,
including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel
Ramonal filed an opposition5 to the petition for probate,
alleging that the holographic will was a forgery and
that the same is even illegible. This gives an
impression that a "third hand" of an interested party
other than the "true hand" of Matilde 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 bottom
after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic
will is in the handwriting of the deceased, it was
procured by undue and improper pressure and
influence on the part of the beneficiaries, or through
fraud and trickery.1wphi1.nt
Respondents presented six (6) witnesses and various
documentary
evidence.
Petitioners
instead
of
presenting their evidence, filed a demurrer 6 to
evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seo Vda. de
Ramonal.
On November 26, 1990, the lower Court issued an
order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration,
the Demurrer to Evidence having being well taken,
same is granted, and the petition for probate of the
document (Exhibit "S") on the purported Holographic
Will of the late Matilde Seo Vda. de Ramonal, is
denied for insufficiency of evidence and lack of merits. 7
On December 12, 1990, respondents filed a notice of
appeal,8 and in support of their appeal, the
respondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6)
Evangeline Calugay.
To have a clear understanding of the testimonies of the
witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of
Misamis Oriental, where the special proceedings for the
probate of the holographic will of the deceased was
filed. He produced and identified the records of the
case. The documents presented bear the signature of
the deceased, Matilde Seo Vda. de Ramonal, for the
purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the
evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro,
was presented to produced and identify the voter's
affidavit of the decedent. However, the voters' affidavit
was not produced for the same was already destroyed
and no longer available.
Matilde Ramonal Binanay, testified that the deceased
Matilde 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 commercial buildings, and deceased always
issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records
of the accounts, and carried personal letters of the
deceased to her creditors.
Matilde Ramonal Binanay further testified that at the
time of the death of Matilde Vda. de Ramonal, she left
a holographic will dated August 30, 1978, which was
personally and entirely written, dated and signed, by
the deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was
appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with
the proceedings of her late husband, as a result of
which he is familiar with the handwriting of the latter.
He testified that the signature appearing in the
holographic will was similar to that of the deceased,
Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an
employee of the Department of Environment and

Natural Resources, Region 10. She testified that she

processed the application of the deceased for pasture
permit and was familiar with the signature of the
deceased, since the signed documents in her presence,
when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents,
testified that she had lived with the deceased since
birth, and was in fact adopted by the latter. That after a
long period of time she became familiar with the
signature of the deceased. She testified that the
signature appearing in the holographic will is the true
and genuine signature of Matilde Seo Vda. de
Ramonal.
The holographic will which was written in Visayan, is
translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline
Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters
at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol,
Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
Village in favor of Evangeline R. Calugay, Helen must
continue with the Sta. Cruz, once I am no longer
around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered
decision9 ruling that the appeal was meritorious. Citing
the decision in the case of Azaola vs. Singson, 109 Phil.
102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will
were contested, we are of the opinion that Article 811
of our present civil code can not be interpreted as to
require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under
penalty of having the probate denied. Since no witness
may have been present at the execution of the
holographic will, none being required by law (art. 810,
new civil code), it becomes obvious that the existence
of witnesses possessing the requisite qualifications is a
matter beyond the control of the proponent. For it is
not merely a question of finding and producing any
three witnesses; they must be witnesses "who know
the handwriting and signature of the testator" and who
can declare (truthfully, of course, even if the law does
not express) "that the will and the signature are in the
handwriting of the testator." There may be no available
witness acquainted with the testator's hand; or even if
so familiarized, the witness maybe unwilling to give a
positive opinion. Compliance with the rule of paragraph
1 of article 811 may thus become an impossibility. That
is evidently the reason why the second paragraph of
article 811 prescribes that
in the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no
qualified witness ma be found (or what amounts to the
same thing, that no competent witness may be willing

to testify to the authenticity of the will), and provides

for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring
that three witnesses be presented if the will is
contested and only one if no contest is had) was
derived from the rule established for ordinary
testaments (CF Cabang vs. Delfianado, 45 PHIL 291;
Tolentino v. Francisco, 57 PHIL 742). But it can not be
ignored that the requirement can be considered
mandatory only in case of ordinary testaments,
precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by
law essential to their validity (Art. 805). Where the will
is holographic, no witness need be present (art. 10),
and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results
are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it
necessary", which reveal that what the law deems
essential is that the court should be convinced of the
will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by
their testimony that the will is genuine, it may consider
it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of
those produced is convincing, the court may still, and
in fact it should resort to handwriting experts. The duty
of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the
proponent that the true intention of the testator be
carried into effect.
Paraphrasing Azaola
vs. Singson,
even
if
the
genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under
penalty of the having the probate denied. No witness
need be present in the execution of the holographic
will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems
essential is that the court is convinced of the
authenticity of the will. Its duty is to exhaust all
available lines of inquiry, for the state is as much
interested in the proponent that the true intention of
the testator be carried into effect. And because the law
leaves it to the trial court to decide if experts are still
needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless
the court expresses dissatisfaction with the testimony
of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay,
Matilde Ramonal Binanay and other witnesses
definitely and in no uncertain terms testified that the
handwriting and signature in the holographic will were
those of the testator herself.
Thus, upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting
and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola
vs. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the
case.
(2) Whether or not the Court of Appeals erred in
holding that private respondents had been able to
present credible evidence to that the date, text, and
signature on the holographic will written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not
analyzing the signatures in the holographic will of
Matilde 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 with the idea of
discretion and that the presumption is that the word
"shall," when used in a statute is mandatory. 11
Laws are enacted to achieve a goal intended and to
guide against an evil or mischief that aims to prevent.
In the case at bar, the goal to achieve is to give effect
to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to
defeat the wishes of the testator.
So, we believe that the paramount consideration in the
present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration
of the evidence is imperative to establish the true
intent of the testator.
It will be noted that not all the witnesses presented by
the respondents testified explicitly that they were
familiar with the handwriting of testator. In the case of
Augusto Neri, clerk of court, Court of First Instance,
Misamis Oriental, he merely identified the record of
Special Proceedings No. 427 before said court. He was
not presented to declare explicitly that the signature
appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan
de Oro City, was presented to identify the signature of
the deceased in the voter's affidavit, which was not
even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified
that:
Q. And you said for eleven (11) years Matilde Vda de
Ramonal resided with your parents at Pinikitan,
Cagayan de Oro City. Would you tell the court what was
your occupation or how did Matilde Vda de Ramonal
keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at
Pabayo-Gomez streets.12
xxx
xxx
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx
xxx
xxx
Q. Showing to you the receipt dated 23 October 1979,
is this the one you are referring to as one of the
receipts which she issued to them?
A. Yes, sir.
Q.
Now there is that signature of Matilde vda. De
Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde
Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you
know Matilde vda de Ramonal kept records of the
accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in
behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this
reflected?
A. In handwritten.14
xxx
xxx
xxx
Q. In addition to collection of rentals, posting records
of accounts of tenants and deed of sale which you said
what else did you do to acquire familiarity of the
signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
xxx
xxx
xxx

Q. You 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.
Q. Since when did you have the possession of the
will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as
you said this was originally in the possession of your
mother?
A. 1985.17
xxx
xxx
xxx
Q. Now, Mrs. Binanay was there any particular reason
why your mother left that will to you and therefore you
have that in your possession?
A. It was not given to me by my mother, I took that in
the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay
kept the fact about the will from petitioners, the legally
adopted children of the deceased. Such actions put in
issue her motive of keeping the will a secret to
petitioners and revealing it only after the death of
Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were
established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was
not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and
she could walk agilely and she could go to her building
to collect rentals, is that correct?
A. Yes, sir.19
xxx
xxx
xxx
Q. Now, let us go to the third signature of Matilde
Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to
letter D?
A. Yes, sir.
Q.
Again the third signature of Matilde Vda de
Ramonal the letter L in Matilde is continued towards
letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx
xxx
xxx
Q. Now, that was 1979, remember one year after the
alleged holographic will. Now, you identified a
document marked as Exhibit R. This is dated January 8,
1978 which is only about eight months from August 30,
1978. Do you notice that the signature Matilde Vda de
Ramonal is beautifully written and legible?

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

exhausted.
Q. You just say that she was very exhausted while
that in 1978 she was healthy was not sickly and she
was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when
you were not present and you just tried to explain
yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated
1978, the same year as the alleged holographic will. In
exhibit I, you will notice that there is no retracing; there
is no hesitancy and the signature was written on a fluid
movement. . . . And in fact, the name Eufemia R.
Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only
with the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the
hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will
was written, dated and signed in the handwriting of the
testator. She testified that:
Q. You testified that you stayed with the house of the
spouses Matilde and Justo Ramonal for the period of 22
years. Could you tell the court the services if any which
you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church,
to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the
bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you
acquire familiarity of the handwriting of Matilde Vda de
Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth. 22
xxx
xxx
xxx
Q.
Now, I am showing to you Exhibit S which is
captioned "tugon" dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court
whose signature is this?
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
xxx
xxx
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.25
x x x
x x x
x x xQ. 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. 26x x x
xxx
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, 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.27x x x
xxx
xxx
Q. Aside from attending as counsel in that Special
Proceeding Case No. 427 what were the other
assistance wherein you were rendering professional
service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other
matters but if there are documents to show that I have
assisted then I can recall.28
xxx
xxx
xxx
Q. Now, I am showing to you exhibit S which is titled
"tugon", kindly go over this document, Fiscal Waga and
tell the court whether you are familiar with the
handwriting contained in that document marked as
exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature
is this?
A.
I think this signature here it seems to be the
signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of
Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in
the project of partition.
Q. Also in item no. 3 there is that signature Matilde
Vda de Ramonal, can you tell the court whose
signature is that?
A.
As I said, this signature also seems to be the
signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being
written.
Q. How about this signature in item no. 4, can you tell
the court whose signature is this?
A. The same is true with the signature in item no. 4. It
seems that they are similar.29
xxx
xxx
xxx
Q. Mr. Prosecutor, I heard you when you said that the
signature of Matilde Vda de Ramonal Appearing in
exhibit S seems to be the signature of Matilde vda de
Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that
it seems to be her signature because it is similar to the
signature of the project of partition which you have
made?
A. That is true.30
From the testimonies of these witnesses, the Court of
Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely
directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that
"the object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But on the
other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail
the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator,
which is why if the holographic will is contested, that
law requires three witnesses to declare that the will
was in the handwriting of the deceased.
The will was found not in the personal belongings of
the deceased but with one of the respondents, who
kept it even before the death of the deceased. In the
testimony of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or five years
before the death of the deceased.There was no
opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents
signed and executed by her during her lifetime. The

only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the
documents which contained the signature of the
deceased with that of the holographic will and she is
not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity
of the signature in the holographic will.
A visual examination of the holographic will convince
us that the strokes are different when compared with
other documents written by the testator. The signature
of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and
erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated
June 16, 1978,35 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 the
holographic will. We, therefore, cannot be certain that
ruling holographic will was in the handwriting by the
deceased.
IN VIEW WHEREOF, the decision appealed from is SET
ASIDE. The records are ordered remanded to the court
of origin with instructions to allow petitioners to
adduce evidence in support of their opposition to the
probate of the holographic will of the deceased Matilde
Seo vda. de Ramonal.1wphi1.nt
No costs.
SO ORDERED.

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

IN THE MATTER OF THE PETITION TO APPROVE
THE WILL OF RICARDO B. BONILLA deceased,
MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO
ARANZA,
ET
AL., oppositorsappellees, 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,
Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with
the Court of First Instance of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was opposed
by the appellees Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla Frias and Ephraim
Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did
not contain a disposition of property after death and
was not intended to take effect after death, and
therefore it was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104
Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of
the case with another case Sp. Proc. No, 8275). Their
motion was granted by the court in an order dated
April 4, 1977.
On November 13, 1978, following the consolidation of
the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss
was denied by the court in its order of February 23,
1979.
The appellees then filed a motion for reconsideration
on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of
said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In view
of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the
fact that the original of the will could not be located
shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied.
Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case
to this Court on the ground that the appeal does not
involve question of fact and alleged that the trial court
committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
The only question here is whether a holographic will
which was lost or cannot be found can be proved by
means of a photostatic copy. Pursuant to Article 811 of
the Civil Code, probate of holographic wills is the
allowance of the will by the court after its due
execution has been proved. The probate may be
uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at
least three Identifying witnesses are required.
However, if the holographic will has been lost or
destroyed and no other copy is available, the will can
not be probated because the best and only evidence is
the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy
of the holographic will may be allowed because
comparison can be made with the standard writings of
the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity."
But, in Footnote 8 of said decision, it says that "Perhaps
it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
WHEREFORE, the order of the lower court dated
October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.

G.R. Nos. 75005-06 February 15, 1990

JOSE
RIVERA petitioner,
vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO
J. RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat,
Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy resident of
that town named Venancio Rivera died. On July 28,
1975, Jose Rivera, claiming to be the only surviving
legitimate son of the deceased, filed a petition for the
issuance of letters of administration over Venancio's
estate. Docketed as SP No. 1076, this petition was
opposed by Adelaido J. Rivera, who denied that Jose
was the son of the decedent. Adelaido averred that
Venancio was his father and did not die intestate but in
fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also
with the Regional Trial Court of Angeles City, a petition
for the probate of the holographic wills. Docketed as SP
No. 1091, this petition was in turn opposed by Jose
Rivera, who reiterated that he was the sole heir of
Venancio's intestate estate. 2
On November 11, 1975, the two cases were
consolidated. Adelaido J. Rivera was later appointed
special administrator. After joint trial, Judge Eliodoro B.
Guinto found that Jose Rivera was not the son of the
decedent but of a different Venancio Rivera who was
married to Maria Vital. The Venancio Rivera whose
estate was in question was married to Maria Jocson, by
whom he had seven children, including Adelaido. Jose
Rivera had no claim to this estate because the
decedent was not his father. The holographic wills were
also admitted to probate. 3
On appeal, the decision of the trial court was affirmed
by the then Intermediate Appellate Court. 4 Its decision
is now the subject of this petition, which urges the
reversal of the respondent court.
In support of his claim that he was the sole heir of the
late Venancio Rivera, Jose sought to show that the said
person was married in 1928 to Maria Vital, who was his
mother. He submitted for this purpose Exhibit A, the
marriage certificate of the couple, and Exhibit B, his
own baptismal certificate where the couple was

indicated as his parents. The petitioner also presented

Domingo Santos, who testified that Jose was indeed
the son of the couple and that he saw Venancio and
Jose together several times. 5 Jose himself stressed that
Adelaido considered him a half-brother and kissed his
hand as a sign of respect whenever they met. He
insisted that Adelaido and his brothers and sisters were
illegitimate children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he and his
brothers and sisters were born to Venancio Rivera and
Maria Jocson, who were legally married and lived as
such for many years. He explained that he could not
present his parents' marriage certificate because the
record of marriages for 1942 in Mabalacat were
destroyed when the town was burned during the war,
as certified by Exhibit 6. 7 He also submitted his own
birth certificate and those of his sisters Zenaida and
Yolanda Rivera, who were each described therein as
the legimitate children of Venancio Rivera and Maria
Jocson. 8 Atty. Regalado P. Morales, then 71 years of
age, affirmed that he knew the deceased and his
parents, Magno Rivera and Gertrudes de los Reyes, and
it was during the Japanese occupation that Venancio
introduced to him Maria Jocson as his wife. 9 To prove
that there were in fact two persons by the same name
of Venancio Rivera, Adelaido offered Venancio Rivera's
baptismal certificate showing that his parents were
Magno Rivera and Gertrudes de los Reyes, 10 as
contrasted with the marriage certificate submitted by
Jose, which indicated that the Venancio Rivera subject
thereof was the son of Florencio Rivera and Estrudez
Reyes. 11 He also denied kissing Jose's hand or
recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents'
marriage certificate because, as he explained it, the
marriage records for 1942 in the Mabalacat civil
registry were burned during the war. Even so, he could
still rely on the presumption of marriage, since it is not
denied that Venancio Rivera and Maria Jocson lived
together as husband and wife for many years,
begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity
of the family. Thus every intendment of the law or fact
leans toward the validity of marriage, the indissolubility
of the marriage bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract
of marriage.
By contrast, although Jose did present his parents'
marriage certificate, Venancio was described therein as
the son of Florencio Rivera. Presumably, he was not the
same Venancio Rivera described in Exhibit 4, his
baptismal certificate, as the son of Magno Rivera.
While we realize that such baptismal certificate is not
conclusive evidence of Venancio's filiation (which is not
the issue here) it may nonetheless be considered to
determine his real identity. Jose insists that Magno and
Florencio are one and the same person, arguing that it
is not uncommon for a person to be called by different
names. The Court is not convinced. There is no
evidence that Venancio's father was called either
Magno or Florencio. What is more likely is that two or
more persons may live at the same time and bear the
same name, even in the same community. That is what
the courts below found in the cases at bar.
What this Court considers particularly intriguing is why,
if it is true that he was the legitimate son of Venancio
Rivera, Jose did not assert his right as such when his
father was still alive. By his own account, Jose
supported himself and presumably also his mother
Maria Vital as a gasoline attendant and driver for
many years. All the time, his father was residing in the
same town and obviously prospering and
available for support. His alleged father was openly

living with another woman and raising another family,

but this was apparently accepted by Jose without
protest, taking no step whatsoever to invoke his status.
If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help
the son and instead left Jose to fend for himself as a
humble worker while his other children by Maria Jocson
enjoyed
a
comfortable
life.
Such
paternal
discrimination is difficult to understand, especially if it
is considered assuming the claims to be true that
Jose was the oldest and, by his own account, the only
legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude is no less
incomprehensible. As Venancio's legitimate wife if
indeed she was she should have objected when her
husband abandoned her and founded another family
by another woman, and in the same town at that.
Seeing that the children of Maria Jocson were being
raised well while her own son Jose was practically
ignored and neglected, she nevertheless did not
demand for him at least support, if not better
treatment, from his legitimate father. It is unnatural for
a lawful wife to say nothing if she is deserted in favor
of another woman and for a caring mother not to
protect her son's interests from his wayward father's
neglect. The fact is that this forsaken wife never
demanded support from her wealthy if errant husband.
She did not file a complaint for bigamy or concubinage
against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely
passive and complaisant.
Significantly, as noted by the respondent court, Maria
Vital was not even presented at the trial to support her
son's allegations that she was the decedent's lawful
wife. Jose says this was not done because she was
already old and bedridden then. But there was no
impediment to the taking of her deposition in her own
house. No effort was made toward this end although
her testimony was vital to the petitioner's cause. Jose
dismisses such testimony as merely "cumulative," but
this Court does not agree. Having alleged that Maria
Jocson's marriage to Venancio Rivera was null and void,
Jose had the burden of proving that serious allegation.
We find from the evidence of record that the
respondent court did not err in holding that the
Venancio Rivera who married Maria Jocson in 1942 was
not the same person who married Maria Vital, Jose's
legitimate mother, in 1928. Jose belonged to a humbler
family which had no relation whatsoever with the
family of Venancio Rivera and Maria Vital. This was
more prosperous and prominent. Except for the curious
Identity of names of the head of each, there is no
evidence linking the two families or showing that the
deceased Venancio Rivera was the head of both.
Now for the holographic wills. The respondent court
considered them valid because it found them to have
been written, dated and signed by the testator himself
in accordance with Article 810 of the Civil Code. It also
held there was no necessity of presenting the three
witnesses required under Article 811 because the
authenticity of the wills had not been questioned.
The existence and therefore also the authenticity of the
holographic wills were questioned by Jose Rivera. In his
own petition in SP No. 1076, he declared that Venancio
Rivera died intestate; and in SP No. 1091, he denied
the existence of the holographic wills presented by
Adelaido Rivera for probate. In both proceedings, Jose
Rivera opposed the holographic wills submitted by
Adelaido Rivera and claimed that they were spurious.
Consequently, it may be argued, the respondent court
should have applied Article 811 of the Civil Code,
providing as follows:
In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.
The flaw in this argument is that, as we have already
determined, Jose Rivera is not the son of the deceased
Venancio Rivera whose estate is in question. Hence,
being a mere stranger, he had no personality to

contest the wills and his opposition thereto did not

have the legal effect of requiring the three witnesses.
The testimony of Zenaida and Venancio Rivera, Jr., who
authenticated the wills as having been written and
signed by their father, was sufficient.
WHEREFORE, the petition is DENIED and the
challenged decision is AFFIRMED, with costs against
the petitioner.
SO ORDERED.

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

ROSA
K.
KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge
of the CFI of Batangas, Branch VI, Lipa City, and
GREGORIO K. KALAW, respondents.
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 deceased
sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa
City, for the probate of her holographic Will executed
on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and
a resident of Lipa City, being of sound and disposing
mind and memory, do hereby declare thus to be my
last will and testament.

1. It is my will that I'll be burried in the cemetery of the

catholic church of Lipa City. In accordance with the
rights of said Church, and that my executrix hereinafter
named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence,
on November 10, 1971, petitioner ROSA K. Kalaw
opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first
written, should be given effect and probated so that
she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an
Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination. The
NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made
by one and the same person. Consequently, Exhibit "C"
was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C',
should be admitted to probate although the alterations
and/or insertions or additions above-mentioned were
not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to assert
the provision of Art. 814 on the ground that they
themselves agreed thru their counsel to submit the
Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it
impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration
arguing that since the alterations and/or insertions
were the testatrix, the denial to probate of her
holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied
in an Order, dated November 2, 1973, on the ground
that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying
probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for
Review on certiorari on the sole legal question of
whether or not theoriginal unaltered text after
subsequent alterations and insertions were voided by
the Trial Court for lack of authentication by the full
signature of the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de
la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1895." 2
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another,
but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked

for the simple reason that nothing remains in the Will

after that which could remain valid. To state that the
Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect
because she failed to authenticate it in the manner
required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to
such insertions, cancellations, erasures or alterations in
a holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo
(el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision
solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar
esa disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la validez
del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la
parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que
declara
nulas
las
adiciones
apostillas
entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la
forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara
nulo un testamento olografo por no estar salvada por
el testador la enmienda del guarismo ultimo del ao en
que fue extendido 3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the
Decision of respondent Judge, dated September 3,
1973, is hereby affirmed in toto. No costs.
SO ORDERED.

G.R. No. 106720 September 15, 1994

SPOUSES
ROBERTO
AND
AJERO, petitioners,
vs.

THELMA

THE COURT OF APPEALS AND CLEMENTE

SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the
Court
of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30,
1992, the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate
is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and
the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah
Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc.
No. Q-37171, for allowance of decedent's holographic
will. They alleged that at the time of its execution, she
was of sound and disposing mind, not acting under
duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the
grounds that: neither the testament's body nor the
signature therein was in decedent's handwriting; it
contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose
Ajero. He contested the disposition in the will of a
house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its
sole owner.
Notwithstanding the oppositions, the trial court
admitted the decedent's holographic will to probate. It
found, inter alia:
Considering then that the probate proceedings herein
must decide only the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for
the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show that the
will in question is different from the will actually
executed by the testatrix. The only objections raised by
the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the
question of identity of will. No other will was alleged to
have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence
adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must
be deemed to be the will actually executed by the
testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and
signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the handwriting
of the testatrix have been presented and have
explicitly and categorically identified the handwriting
with which the holographic will in question was written
to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be
entirely written, dated and signed in the handwriting of
the testatrix has been complied with.
xxx xxx xxx

As to the question of the testamentary capacity of the

testratix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely
in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time
the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the
proper object of her bounty, and the characterof the
testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of
her estate. She even identified the lot number and
square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there is more
than sufficient showing that she knows the character of
the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the
testatrix has to be resolved in favor of the allowance of
probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the part
of the beneficiary or of some other person, the
evidence adduced have not shown any instance where
improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of
the execution of the will, i.e., at or around the time of
her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and
has a mind of her own. Her independence of character
and to some extent, her sense of superiority, which has
been testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the
undue influence or improper pressure in question
herein only refer to the making of a will and not as to
the specific testamentary provisions therein which is
the proper subject of another proceeding. Hence, under
the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine
in the law on succession that in case of doubt, testate
succession should be preferred over intestate
succession, and the fact that no convincing grounds
were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid
will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition
for probate of decedent's will was dismissed. The Court
of Appeals found that, "the holographic will fails to
meet the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of
the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and
the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated.
It also found that the erasures, alterations and
cancellations
made
thereon
had
not
been
authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that
will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;

(d) If it was procured by undue and improper pressure

and influence, on the part of the beneficiary, or of
some other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the New Civil Code
reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or
the influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the
time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a
holographic will to probate, the only issues to be
resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time
the will was executed; and, (4) whether the execution
of the will and its signing were the voluntary acts of the
decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It
held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40
Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an
interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805
and 806 of the New Civil Code.
In the case of holographic wills, on the other hand,
what assures authenticity is the requirement that they
be totally autographic or handwritten by the testator
himself, 7 as provided under Article 810 of the New
Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows
that its requirement affects the validity of the
dispositions contained in the holographic will, but not
its probate. If the testator fails to sign and date some
of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to

probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1985." 8 (Citations omitted.)
Thus,
unless
the
unauthenticated
alterations,
cancellations or insertions were made on the date of
the holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack
of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles
678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken.
They read as follows:
Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites
required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of the
year, month and day of its execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his
signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810
of the New Civil Code and not those found in Articles
813 and 814 of the same Code are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie
Sand could not validly dispose of the house and lot
located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional
instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent
herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero
to question her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares
with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED.
The Decision of the Court of Appeals in CA-G.R. CV No.
22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q37171, dated November 19, 1988, admitting to probate
the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards
the Cabadbaran property. No costs.
SO ORDERED.

seasonably complied with this requirement, said

Special Proceedings No. 912 was "terminated, closed
and archived" by an order dated June 19, 1955.
However, on May 9, 1956, said Antonia Ventura filed
another partition for the probate of the probate of the
aforementioned last will and testament of her
deceased husband, Agustin del Valle, which petition
was docketed as Special Proceedings No. 970 of the
same court. On June 22, 1956, the date set for the
hearing of this petition, appellees Maura, Milagros,
Deogracias and Jacinta, all surnamed Ventura, moved
for the dismissal of the case upon the ground that it
amounted to an attempt to reopen Special Proceedings
No. 912, which had already been finally and definitely
closed, terminated and archived; that the present
proceedings is unnecessary and superfluous; and that
the provisions of the will in question had " already been
carried out" in the aforementioned deed of extrajudicial partition. The lower court granted this motion
upon the theory that it " no longer" had "jurisdiction to
entertain" the case, "because to do so would be for the
court to reopen Special Proceedings No. 912",
notwithstanding the fact that it had been "definitely
declared terminated, closed and archived" by an order
which has already "become final and executory", no
appeal having been taken therefrom. Hence, the
present appeal taken by petitioner Antonia Ventura.

G.R. No. L-11609, September 24, 1959

IN THE MATTER OF THE TESTATE ESTATE OF THE
LATE AGUSTIN DEL VALLE. ANTONIA VENTURA,
PETITIONER
AND
APPELLANT,
VS.
MAURA
VENTURA, MILAGROS P. VENTURA, DEOGRACIAS
P.
VENTURA,
AND
JACINTA
P.
VENTURA,
OPPOSITORS AND APPELLEES.
CONCEPCION, J.:
Appeal from an order of the Court of First Instance of
Tarlac, granting appellees' motion to dismiss
appellant's petition for probate of the will of her
deceased husband Agustin del Valle, on the ground
that it amounted to an attempt to reopen Special
Proceedings, No. 912, which had been finally and
definitly
closed,
terminated
and
archived.
DECISION
This is an appeal from an order of the Court of first
Instance of Tarlac, granting a motion to dismiss and
dismissing
the
petition
herein.
Petitioner Antonia Ventura is the widow of Agustine del
Valle, who died in Paniqui, Tarlac, on May 19, 1955.
Soon thereafter, or on June 7 of the same year, she
instituted Special Proceedings No. 912 if said court,
with a petition for the probate of a document attached
thereto, as the alleged last will and testament of the
deceased. On July 15, 1955, after the issuance of the
corresponding notice of hearing, the publication of said
notice and the service of copies thereof upon all parties
concerned, petitioner filed a motion stating that the
heirs instituted in the will had agreed to partition,
among themselves, the estate of the deceased , in
accordance with the provisions of said instrument, and
praying that an order be issued "terminating and
closing" the aforementioned proceedings. On the
same date, the court issued an order declaring that
said motion was well taken and would, accordingly, be
granted, upon submission of a sighed copy of the
corresponding deed of extra-judicial partition, for which
petitioner was given two (2) days. Petitioner having

The aforementioned conclusion of the lower court is

intenable. Although final and executory; said order of
dismissal of Special Proceedings No. 912 does not bar
the consideration of the petition herein. Pursuant to
rule 30, Section 1, of the Rules of Court.
"An action may be dismissed by the by the plaintiff
without order of court by filling a notice of dismissal at
any time before service of the answer. Unless
otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff
who has once dismissed in a competent court an action
based on or including the same action."
Although found in Part I of the Rules of Court, which
refers to civil actions, this rule is applicable to Special
Proceedings, for Rule 73, section 2, of said Rules
provides:
"In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings."
The order issue in Special Proceedings No. 912,
directing that the same be closed, terminated and
archived, had filed a pleading or raised an issue, is
deemed, therefore, to be "without prejudice", the
contrary not being stated either in said order or in the
motion that prompted its issuance. Needless to say,
the aforementioned order may not be regarded as a
judgment, barring a subsequent action upon the
ground of "res adjudicata", said order not being an
adjudication on the merits (Almeda v. Cruz, 47 Off.
Gaz., 1178). The case of Sandoval v. Santiago (L-1723,
May 26, 1949), cited by appellees in support of the
theory that an extra-judicial partition, once approved
by the Court, becomes a judicial partition, is not in
point, no such judicial approval having been given to
the deed of partition above referred to. In fact, the
lower court and the appellees herein still refer to said
instrument as a deed of "extra-judicial" partition.
Moreover, in Guevarra v. Guevarra (74 Phil., 479, 487488), it was explicitly held:
"x x x If the decedent left a will and no debts and heirs
and legatees desire to make an extra-judicial partition
of the estate, they must first present that will to the
court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of
the will unless those provisions are contrary to law.
Neither may they do away with the presentation of the
will to the court for probate, because such suppression
of the will is contrary to law and public policy. The law

enjoins the probate of the will and public policy

requires it, because unless the will is probated and
notice thereof given to the whole world, the right of a
person to dispose of his property by will may rendered
nugatory. Absent legatees and devises, or such of
them as may have no knowledge of the will, could be
cheated of their inheritance thru the conclusion of
some of the heirs who might agrees to the partition of
the estate among themselves to the exclusion of
others.
x
x
x
x

IT IS SO ORDERED.

"Even if the decedent left no debts and nobody raises

any question as to the authenticity and due execution
of the will none of the heirs may sue for the partition of
the estate in accordance with the will without first
securing its allowance or probate of the Court: first ,
because the law expressly provides that "no will shall
pass either real or personal estate unless it is probated
and allowed in the proper court's and second, because
the probate of a will, which is a proceeding in rem,
cannot be dispensed with and substituted by any other
proceeding, judicial or extra-judicial, without offending
against public policy designed to offectuate the
testator's right to dispose of his property by will in
accordance with law and to protect the rights of the
heirs and legatees under the will thru the means
provided by law, among which are the publication and
the personal notices to each and all of said heirs and
legatees."
Hence, in "Testate Estate of the Late Asuncion
Miraflores. Desedario Miraflores, et al. vs. Soledad
Mesa Magsuci, et al." (L-12166, April 29, 1959), we
said:
"x x x Section 5, Rule 77 of the Rules of Court provides
that 'when a will is delivered to, or a petition for the
allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to
contest the allowance thereof.' Thus, in Salazar vs. The
court of First Instance of Laguna (64 Phil. 785), we held
that 'it is the inevitable duty of the court when a will is
presented to it, to appoint hearing for its allowance and
to cause notices thereof to be given by publication.
The duty imposed by said section 3, Rule 77 of the
Rules of Court is imperative and non-compliance
therewith would be a mockery of the law and of the last
will of the testator."
In other words, the lower court had, not only
jurisdiction, but, also, the duty to entertain appellant's
petition for probate of the alleged will of Agustin de
Valle. The practical and legal necessity of giving due
course to said petition becomes patent when we
consider that on February 8, 1952, a brother and a
sister of the late Agustin del Valle, namely, Ponciano
del Valle and Severa Valle Vda. de Carlos, filed Civil
Case No. 2060 of the Court of First Instance of Tarlac,
against Antonia Ventura, for the partition of the estate
of the deceased. Antonia Centura moved for the
dismissla of the complaint therein, upon the ground
that is was barred by the action taken in the
aforementioned Special Proceedings No. 912. This
motion was denied, on April 12, 1956, upon the ground
that no will shall pass either real or personal estate
unless it is probated and allowed in the proper court
and that the probate of such will cannot be dispensed
with. Hence, Antonia Ventura felt constrained to
institute the present proceedings. At any rate, under
the circumstance, public policy and public interest
demand a determination of the question whether
Agustin
de
Valle
died
testate
or
intestate.
WHEREFORE, the order appealed from should be, as it
is hereby, reversed, and lot the record hereof be
remanded to the lower court for further proceedings in
consonance with this decision, with costs against
appellees
herein.

G.R. No. L-48840 December 29, 1943

ERNESTO
M.
GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO
BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate
son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over
their inheritance from the latter. The action was
commenced on November 12, 1937, by Rosario
Guevara to recover from Ernesto Guevara what she
claims to be her strict ligitime as an acknowledged
natural daughter of the deceased to wit, a portion of
423,492 square meters of a large parcel of land
described in original certificate of title No. 51691 of the

province of Pangasinan, issued in the name of Ernesto

M. Guervara and to order the latter to pay her
P6,000 plus P2,000 a year as damages for withholding
such legitime from her. The defendant answered the
complaint contending that whatever right or rights the
plaintiff might have had, had been barred by the
operation of law.
It appears that on August 26, 1931, Victorino L.
Guevara executed a will (exhibit A), apparently with all
the formalities of the law, wherein he made the
following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold
chain worth P40; to his son Ernesto M. Guevara, a gold
ring worth P180 and all the furniture, pictures, statues,
and other religious objects found in the residence of
the testator in Poblacion Sur, Bayambang, Pangasinan;
"a mi hija Rosario Guevara," a pair of earrings worth
P120; to his stepson Piuo Guevara, a ring worth P120;
and to his wife by second marriage, Angustia Posadas,
various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos
Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio,
apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and
assessed at P540; to his wife Angustia Posadas he
confirmed the donation propter nuptias theretofore
made by him to her of a portion of 25 hectares of the
large parcel of land of 259-odd hectares described in
plan Psu-66618. He also devised to her a portion of 5
hectares of the same parcel of land by way of complete
settlement of her usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to
be disposed of either by him during his lifetime or by
his attorney-in-fact Ernesto M. Guevara in order to pay
all his pending debts and to degray his expenses and
those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in
the following manner:
(d). Toda la porcion restante de mi terreno arriba
descrito, de la extension superficial aproximada de
ciento veintinueve (129) hectareas setenta (70) areas,
y veiticinco (25) centiares, con todas sus mejoras
existentes en la misma, dejo y distribuyo, pro-indiviso,
a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho
(108) hectareas, ocho (8) areas y cincuenta y cuatro
(54) centiareas, hacia la parte que colinda al Oeste de
las cien (100) hectareas referidas en el inciso (a) de
este parrafo del testamento, como su propiedad
absoluta y exclusiva, en la cual extension superficial
estan incluidas cuarenta y tres (43) hectareas,
veintitres (23) areas y cuarenta y dos (42) centiareas
que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun
(21) hectareas, sesenta y un (61) areas y setenta y un
(71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea
Testamentario a mi hijo Ernesto M. Guevara, con
relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que
los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis
disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L.
Guevarra executed whereby he conveyed to him the
southern half of the large parcel of land of which he
had theretofore disposed by the will above mentioned,
inconsideration of the sum of P1 and other valuable
considerations, among which were the payment of all
his debts and obligations amounting to not less than
P16,500, his maintenance up to his death, and the
expenses of his last illness and funeral expenses. As to
the northern half of the same parcel of land, he
declared: "Hago constar tambien que reconozco a mi
referido hijo Ernesto M. guevara como dueo de la
mitad norte de la totalidad y conjunto de los referidos
terrenos por haberlos comprado de su propio peculio
del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."

On September 27, 1933, final decree of registration

was issued in land registration case No. 15174 of the
Court of First Instance of Pangasinan, and pursuant
thereto original certificate of title No. 51691 of the
same province was issued on October 12 of the same
year in favor of Ernesto M. Guevara over the whole
parcel of land described in the deed of sale above
referred to. The registration proceeding had been
commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with
Rosario, among others, as oppositor; but before the
trial of the case Victorino L. Guevara withdrew as
applicant and Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby facilitating the
issuance of the title in the name of Ernesto M. Guevara
alone.
On September 27, 1933, Victorino L. Guevarra died. His
last will and testament, however, was never presented
to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of
his estate. Whether the various legatees mentioned in
the will have received their respective legacies or have
even been given due notice of the execution of said will
and of the dispositions therein made in their favor,
does not affirmatively appear from the record of this
case. Ever since the death of Victorino L. Guevara, his
only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the
registration proceeding and to have disposed of
various portions thereof for the purpose of paying the
debts left by his father.
In the meantime Rosario Guevara, who appears to
have had her father's last will and testament in her
custody, did nothing judicially to invoke the
testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares
of the large parcel of land described in the will. But a
little over four years after the testor's demise, she
(assisted by her husband) commenced the present
action against Ernesto M. Guevara alone for the
purpose hereinbefore indicated; and it was only during
the trial of this case that she presented the will to the
court, not for the purpose of having it probated but
only to prove that the deceased Victirino L. Guevara
had acknowledged her as his natural daughter. Upon
that proof of acknowledgment she claimed her share of
the inheritance from him, but on the theory or
assumption that he died intestate, because the will had
not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his
legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of
appeals sustained that theory.
Two
principal
questions
are
before
us
for
determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario
Guevara; and (2) the efficacy of the deed of sale
exhibit 2 and the effect of the certificate of title issued
to the defendant (petitioner herein) Ernesto M.
Guevara.
I
We cannot sanction the procedure adopted by the
respondent Rosario Guevara, it being in our opinion in
violation of procedural law and an attempt to
circumvent and disregard the last will and testament of
the decedent. The Code of Civil Procedure, which was
in force up to the time this case was decided by the
trial court, contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to
Execution. No will shall pass either the real or
personal estate, unless it is proved and allowed in the
Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real
and personal estate shall be conclusive as to its due
execution.
Sec. 626. Custodian of Will to Deliver. The person
who has the custody of a will shall, within thirty days
after he knows of the death of the testator, deliver the
will into the court which has jurisdiction, or to the
executor named in the will.

Sec. 627. Executor to Present Will and Accept or

Refuse Trust. A person named as executor in a will,
shall within thirty days after he knows of the death of
the testor, or within thirty days after he knows that he
is named executor, if he obtained such knowledge after
knowing of the death of the testor, present such will to
the court which has jurisdiction, unless the will has
been otherwise returned to said court, and shall, within
such period, signify to the court his acceptance of the
trust, or make known in writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any of the
duties required in the two proceeding sections, unless
he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed.
If a person having custody of a will after the death of
the testator neglects without reasonable cause to
deliver the same to the court having jurisdiction, after
notice by the court so to do, he may be committed to
the prison of the province by a warrant issued by the
court, and there kept in close confinement until he
delivers the will.
The foregoing provisions are now embodied in Rule 76
of the new Rules of Court, which took effect on July 1,
1940.
The proceeding for the probate of a will is one in rem,
with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees,
and devisees of the testator (section 630, C. c. P., and
sections 3 and 4, Rule 77). Altho not contested (section
5, Rule 77), the due execution of the will and the fact
that the testator at the time of its execution was of
sound and disposing mind and not acting under duress,
menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the
will be legalized and given effect by means of a
certificate of its allowance, signed by the judge and
attested by the seal of the court; and when the will
devises real property, attested copies thereof and of
the certificate of allowance must be recorded in the
register of deeds of the province in which the land lies.
(Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the
law that the presentation of a will to the court for
probate is mandatory and its allowance by the court is
essential and indispensable to its efficacy. To assure
and compel the probate of will, the law punishes a
person who neglects his duty to present it to the court
with a fine not exceeding P2,000, and if he should
persist in not presenting it, he may be committed to
prision and kept there until he delivers the will.
The Court of Appeals took express notice of these
requirements of the law and held that a will, unless
probated, is ineffective. Nevertheless it sanctioned the
procedure adopted by the respondent for the following
reasons:
The majority of the Court is of the opinion that if this
case is dismissed ordering the filing of testate
proceedings, it would cause injustice, incovenience,
delay, and much expense to the parties, and that
therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to
decide their controversy once and for all, since, in a
similar case, the Supreme Court applied that same
criterion (Leao vs. Leao, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules of
Court. Besides, section 6 of Rule 124 provides that, if
the procedure which the court ought to follow in the
exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of
procedure may be adopted which appears most
consistent to the spirit of the said Rules. Hence, we
declare the action instituted by the plaintiff to be in
accordance with law.
Let us look into the validity of these considerations.
Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement
between heirs. If the decedent left no debts and the
heirs and legatees are all of age, or the minors are
represented by their judicial guardians, the parties
may, without securing letters of administration, divide
the estate among themselves as they see fit by means

of a public instrument filed in the office of the register

of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir
or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for
letters of administration within two years after the
death of the decedent.
That is a modification of section 596 of the Code of
Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without
Legal Proceedings. Whenever all the heirs of a
person who died intestate are of lawful age and legal
capacity and there are no debts due from the estate, or
all the debts have been paid the heirs may, by
agreement duly executed in writing by all of them, and
not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings
in court.
The implication is that by the omission of the word
"intestate" and the use of the word "legatees" in
section 1 of Rule 74, a summary extrajudicial
settlement of a deceased person's estate, whether he
died testate or intestate, may be made under the
conditions specified. Even if we give retroactive effect
to section 1 of Rule 74 and apply it here, as the Court
of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the
nullification of such will thru the failure of its custodian
to present it to the court for probate; for such a result
is precisely what Rule 76 sedulously provides against.
Section 1 of Rule 74 merely authorizes the extrajudicial
or judicial partition of the estate of a decedent "without
securing letter of administration." It does not say that
in case the decedent left a will the heirs and legatees
may divide the estate among themselves without the
necessity of presenting the will to the court for
probate. The petition to probate a will and the petition
to issue letters of administration are two different
things, altho both may be made in the same case. the
allowance of a will precedes the issuance of letters
testamentary or of administration (section 4, Rule 78).
One can have a will probated without necessarily
securing letters testamentary or of administration. We
hold that under section 1 of Rule 74, in relation to Rule
76, if the decedent left a will and no debts and the
heirs and legatees desire to make an extrajudicial
partition of the estate, they must first present that will
to the court for probate and divide the estate in
accordance with the will. They may not disregard the
provisions of the will unless those provisions are
contrary to law. Neither may they so away with the
presentation of the will to the court for probate,
because such suppression of the will is contrary to law
and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the
will is probated and notice thereof given to the whole
world, the right of a person to dispose of his property
by will may be rendered nugatory, as is attempted to
be done in the instant case. Absent legatees and
devisees, or such of them as may have no knowledge
of the will, could be cheated of their inheritance thru
the collusion of some of the heirs who might agree to
the partition of the estate among themselves to the
exclusion of others.
In the instant case there is no showing that the various
legatees other than the present litigants had received
their respective legacies or that they had knowledge of
the existence and of the provisions of the will. Their
right under the will cannot be disregarded, nor may
those rights be obliterated on account of the failure or
refusal of the custodian of the will to present it to the
court for probate.
Even if the decedent left no debts and nobdy raises
any question as to the authenticity and due execution
of the will, none of the heirs may sue for the partition
of the estate in accordance with that will without first
securing its allowance or probate by the court, first,
because the law expressly provides that "no will shall
pass either real or personal estate unless it is proved
and allowed in the proper court"; and, second, because

the probate of a will, which is a proceeding in rem,

cannot be dispensed with the substituted by any other
proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the
testator's right to dispose of his property by will in
accordance with law and to protect the rights of the
heirs and legatees under the will thru the means
provided by law, among which are the publication and
the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition,
which is one in personam, any more than it could
decree the registration under the Torrens system of the
land
involved
in
an
ordinary
action
for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule
74, relied upon by the Court of Appeals, does not
sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by
the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of the
properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one
Paulina Ver executed a will on October 11, 1902, and
died on November 1, 1902. Her will was presented for
probate on November 10, 1902, and was approved and
allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went
ahead and divided the properties among themselves
and some of them subsequently sold and disposed of
their shares to third persons. It does not affirmatively
appear in the decision in that case that the partition
made by the heirs was not in accordance with the will
or that they in any way disregarded the will. In closing
the case by its order dated September 1, 1911, the
trial court validated the partition, and one of the heirs,
Cunegunda Leao, appealed. In deciding the appeal
this Court said:
The principal assignment of error is that the lower
court committed an error in deciding that the heirs and
legatees of the estate of Da. Paulina Ver had
voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower
court that there had been a voluntary partition of the
estate among the heirs and legatees, and in the
absence of positive proof to the contrary, we must
conclude that the lower court had some evidence to
support its conclusion.
Thus it will be seen that as a matter of fact no question
of law was raised and decided in that case. That
decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by
the respondent whereby she seeks to prove her status
as an acknowledged natural child of the decedent by
his will and attempts to nullify and circumvent the
testamentary dispositions made by him by not
presenting the will to the court for probate and by
claiming her legitime as an acknowledged natural child
on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her
to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48
Phil. 737, this Court departed from the procedure
sanctioned by the trial court and impliedly approved by
this Court in the Leao case, by holding that an
extrajudicial partition is not proper in testate
succession. In the Riosa case the Court, speaking thru
Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
SUCCESSION. Section 596 of the Code of Civil
Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property
of the deceased, without going into any court of
justice, makes express reference to intestate
succession, and therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the
instant case, which is a testate succession, the heirs
made an extrajudicial partition of the estate and at the
same time instituted proceeding for the probate of the
will and the administration of the estate. When the
time came for making the partition, they submitted to

the court the extrajudicial partition previously made by

them, which the court approved. Held: That for the
purposes of the reservation and the rights and
obligations created thereby, in connection with the
relatives benefited, the property must not be deemed
transmitted to the heirs from the time the extrajudicial
partition was made, but from the time said partition
was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124,
which provides that if the procedure which the court
ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any
suitable process for mode of proceeding may be
adopted which appears most conformable to the spirit
of the said Rules. That provision is not applicable here
for the simple reason that the procedure which the
court ought to follow in the exercise of its jurisdiction is
specifically pointed out and prescribed in detail by
Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is
dismissed, ordering the filing of testate proceedings, it
would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in
requiring the plaintiff not to violate but to comply with
the law. On the contrary, an injustice might be
committed against the other heirs and legatees
mentioned in the will if the attempt of the plaintiff to
nullify said will by not presenting it to the court for
probate should be sanctioned. As to the inconvenience,
delay, and expense, the plaintiff herself is to blame
because she was the custodian of the will and she
violated the duty imposed upon her by sections 2, 4,
and 5 of Rule 76, which command her to deliver said
will to the court on pain of a fine not exceeding P2,000
and of imprisonment for contempt of court. As for the
defendant, he is not complaining of inconvenience,
delay, and expense, but on the contrary he is insisting
that the procedure prescribed by law be followed by
the plaintiff.
Our conclusion is that the Court of Appeals erred in
declaring the action instituted by the plaintiff to be in
accordance with law. It also erred in awarding relief to
the plaintiff in this action on the basis of intestacy of
the decedent notwithstanding the proven existence of
a will left by him and solely because said will has not
been probated due to the failure of the plaintiff as
custodian thereof to comply with the duty imposed
upon her by the law.
It is apparent that the defendant Ernesto M. Guevara,
who was named executor in said will, did not take any
step to have it presented to the court for probate and
did not signify his acceptance of the trust or refusal to
accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his
contention is that said will, insofar as the large parcel
of land in litigation is concerned, has been superseded
by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second
question, referring to the efficacy of the deed of sale
exhibit 2 and the effect of the certificate of titled
issued to the defendant Ernesto M. Guevara. So that
the parties may not have litigated here in vain insofar
as that question is concerned, we deem it proper to
decide it now and obviate the necessity of a new
action.
The deed of sale exhibit 2 executed by and between
Victorino L. Guevara and Ernesto M. Guevara before a
notary public on July 12, 1933, may be divided into two
parts: (a) insofar as it disposes of and conveys to
Ernesto M. Guevara the southern half of Victorino L.
Guevara's
hacienda
of
259-odd
hectares
in
consideration of P1 and other valuable considerations
therein mentioned; and (b) insofar as it declares that
Ernesto M. Guevara became the owner of the northern
half of the same hacienda by repurchasing it with his
own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the
hacienda to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the
debts of the deceased, the Court of Appeals found it to

be valid and efficacious because: "(a) it has not been

proven that the charges imposed as a condition is [are]
less than the value of the property; and (b) neither has
it been proven that the defendant did not comply with
the conditions imposed upon him in the deed of
transfer." As a matter of fact the Court of Appeals
found" "It appears that the defendant has been paying
the debts left by his father. To accomplish this, he had
to alienate considerable portions of the abovementioned land. And we cannot brand such alienation
as anomalous unless it is proven that they have
exceeded the value of what he has acquired by virtue
of the deed of July 12, 1933, and that of his
corresponding share in the inheritance." The finding of
the Court of Appeals on this aspect of the case is final
and conclusive upon the respondent, who did not
appeal therefrom.
B. With regard to the northern half of the hacienda, the
findings of fact and of law made by the Court of
Appeals are as follows:
The defendant has tried to prove that with his own
money, he bought from Rafael Puzon one-half of the
land in question, but the Court a quo, after considering
the evidence, found it not proven; we hold that such
conclusion is well founded. The acknowledgment by
the deceased, Victorino L. Guevara, of the said
transactions, which was inserted incidentally in the
document of July 12, 1933, is clearly belied by the fact
that the money paid to Rafael Puzon came from
Silvestre P. Coquia, to whom Victorino L. Guevara had
sold a parcel of land with the right of repurchase. The
defendant, acting for his father, received the money
and delivered it to Rafael Puzon to redeem the land in
question, and instead of executing a deed of
redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to
the registration of the land in the name of the
defendant, because of the latter's promise that after
paying all the debt of their father, he would deliver to
her and to the widow their corresponding shares. As
their father then was still alive, there was no reason to
require the delivery of her share and that was why she
did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The
evidence shows that such promise was really made.
The registration of land under the Torrens system does
not have the effect of altering the laws of succession,
or the rights of partition between coparceners, joint
tenants, and other cotenants nor does it change or
affect in any other way any other rights and liabilities
created by law and applicable to unregistered land
(sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res
judicata be invoked against her claim. Under these
circumstances, she has the right to compel the
defendant to deliver her corresponding share in the
estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the
petitioner assails the foregoing findings of the Court of
Appeals. But the findings of fact made by said court are
final and not reviewable by us on certiorari. The Court
of Appeals found that the money with which the
petitioner repurchased the northern half of the land in
question from Rafael Puzon was not his own but his
father's, it being the proceeds of the sale of a parcel of
land made by the latter to Silvestre P. Coquia. Said
court also found that the respondent withdrew her
opposition to the registration of the land in the name of
the petitioner upon the latter's promise that after
paying all the debts of their father he would deliver to
her and to the widow their corresponding shares. From
these facts, it results that the interested parties
consented to the registration of the land in question in
the name of Ernesto M. Guevara alone subject to the
implied trust on account of which he is under obligation
to deliver and convey to them their corresponding
shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a
reversal of the decision and decree of registration,
which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the

petitioner may be compelled to fulfill the promise by

virtue of which he acquired his title. That is authorized
by section 70 of the Land Registration Act, cited by the
Court of Appeals, and by the decision of this Court
in Severino vs. Severino, 44 Phil., 343, and the cases
therein cited.
Upon this phase of the litigation, we affirm the finding
of the Court of Appeals that the northern half of the
land described in the will exhibit A and in original
certificate of title No. 51691 still belongs to the estate
of the deceased Victorino L. Guevara. In the event the
petitioner Ernesto M. Guevara has alienated any
portion thereof, he is under obligation to compensate
the estate with an equivalent portion from the southern
half of said land that has not yet been sold. In other
words, to the estate of Victorino L. Guevara still
belongs one half of the total area of the land described
in said original certificate of title, to be taken from such
portions as have not yet been sold by the petitioner,
the other half having been lawfully acquired by the
latter in consideration of his assuming the obligation to
pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of
Appeals which declares in effect that notwithstanding
exhibit 2 and the issuance of original certificate of title
No. 51691 in the name of Ernesto M. Guevara, one half
of the land described in said certificate of title belongs
to the estate of Victorino L. Guevara and the other half
to Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said
court insofar as it awards any relief to the respondent
Rosario Guevara in this action is hereby reversed and
set aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for
probate in accordance with law, without prejudice to
such action as the provincial fiscal of Pangasinan may
take against the responsible party or parties under
section 4 of Rule 76. After the said document is
approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the
heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to
partition the estate of the testator, taking into
consideration the pronouncements made in part II of
this opinion. No finding as to costs in any of the three
instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

G.R. No. L-22595

November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross,
Lawrence
and
Selph
for
appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph
G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme

of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial
of his participation in the inheritance; (3) the denial of
the motion for reconsideration of the order approving
the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the
deed of transfer of said business; and (5) the
declaration that the Turkish laws are impertinent to this
cause, and the failure not to postpone the approval of
the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of
the depositions requested in reference to the Turkish
laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason
they are void as being in violation or article 10 of the
Civil Code which, among other things, provides the
following:
Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the
amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the
national law of the person whose succession is in
question, whatever may be the nature of the property
or the country in which it may be situated.
But the fact is that the oppositor did not prove that
said testimentary dispositions are not in accordance
with the Turkish laws, inasmuch as he did not present
any evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws,
they are presumed to be the same as those of the
Philippines. (Lim and Limvs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence
on this point; so much so that he assigns as an error of
the court in not having deferred the approval of the
scheme of partition until the receipt of certain
testimony requested regarding the Turkish laws on the
matter.
The refusal to give the oppositor another opportunity
to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find
no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the
record that the national law of the testator Joseph G.
Brimo was violated in the testamentary dispositions in
question which, not being contrary to our laws in force,
must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in
this respect was not erroneous.
In regard to the first assignment of error which deals
with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as
such in will, it must be taken into consideration that
such exclusion is based on the last part of the second
clause of the will, which says:
Second. I like desire to state that although by law, I am
a Turkish citizen, this citizenship having been conferred
upon me by conquest and not by free choice, nor by
nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I
now possess, it is my wish that the distribution of my
property and everything in connection with this, my
will, be made and disposed of in accordance with the
laws in force in the Philippine islands, requesting all of
my relatives to respect this wish, otherwise, I annul
and cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail to
comply with this request.
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must
respect the testator's will to distribute his property, not

in accordance with the laws of his nationality, but in

accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void,
being contrary to law, for article 792 of the civil Code
provides the following:
Impossible conditions and those contrary to law or
good morals shall be considered as not imposed and
shall not prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise
provide.
And said condition is contrary to law because it
expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted,
such national law of the testator is the one to govern
his testamentary dispositions.
Said condition then, in the light of the legal provisions
above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and
consequently valid and effective even as to the herein
oppositor.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are modified and
it is directed that the distribution of this estate be
made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial
administrator is approved in all other respects, without
any pronouncement as to costs.
So ordered.

G.R. No. L-20234

December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE
HONORABLE COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision
of the Court of Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal
of an action for partition.
The factual background appears in the following
portion of the decision of the Court of Appeals (Petition,
Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe
de la Serna and Gervasia Rebaca, executed a joint last
will and testament in the local dialect whereby they
willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall
be given to Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did not give us
any child in our union, Manuela Rebaca being married
to Nicolas Potot", and that "while each of the testators
is yet living, he or she will continue to enjoy the fruits
of the two lands aforementioned", the said two parcels
of land being covered by Tax No. 4676 and Tax No.
6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe dela
Serna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu
which, after due publication as required by law and
there being no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special Proceedings No.
499, "declara legalizado el documento Exhibit A como
el testamento y ultima voluntad del finado Bernabe de
la Serna con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio tiempo
segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor
de la logataria universal Manuela Rebaca de Potot
previa prestacion por parte de la misma de una fianza
en la sum de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los aos desde esta
fecha" (Act Esp. 499, Testamentaria Finado Bernabe de
la Serna) Upon the death of Gervasia Rebaca on
October 14, 1952, another petition for the probate of
the same will insofar as Gervasia was concerned was
filed on November 6, 1952, being Special Proceedings
No. 1016-R of the same Court of First Instance of Cebu,
but for failure of the petitioner, Manuela R. Potot and
her attorney, Manuel Potot to appear, for the hearing of
said petition, the case was dismissed on March 30,
1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard
and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the
Civil Code (Art. 669, Civil Code of 1889 and Art. 818,
Civil Code of the Philippines); but on appeal by the
testamentary heir, the Court of Appeals reversed, on
the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive
on the due execution of the testament. Further, the
Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818,
new Civil Code). prohibits the making of a will jointly by
two or more persons either for their reciprocal benefit
or for the benefit of a third person. However, this form
of will has long been sanctioned by use, and the same
has continued to be used; and when, as in the present
case, one such joint last will and testament has been
admitted to probate by final order of a Court of

competent jurisdiction, there seems to be no

alternative except to give effect to the provisions
thereof that are not contrary to law, as was done in the
case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the
joint will therein mentioned, saying, "assuming that the
joint will in question is valid."
Whence this appeal by the heirs intestate of the
deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final
decree of probate, entered in 1939 by the Court of First
Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will
and testament despite the fact that even then the Civil
Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or
in favor of a third party (Art. 669, old Civil Code). The
error thus committed by the probate court was an error
of law, that should have been corrected by appeal, but
which did not affect the jurisdiction of the probate
court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a
petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re
Estates of Johnson, 39 Phil. 156); and public policy and
sound practice demand that at the risk of occasional
errors judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis
set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other
cases cited in 2 Moran, Comments on the Rules of
Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe
de la Cerna, are concluded by the 1939 decree
admitting his will to probate. The contention that being
void the will cannot be validated, overlooks that the
ultimate decision on Whether an act is valid or void
rests with the courts, and here they have spoken with
finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was
correct.
But the Court of Appeals should have taken into
account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share
of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive, and over
whose interest in the conjugal properties the probate
court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered
that prior to the new Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as
the estate of the wife was concerned, must be, on her
death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator.
Thus regarded, the holding of the court of First Instance
of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the previous
holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and
not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless
she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint
wills should be in common usage could not make them
valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may
prevail against their observance (Art. 5, Civ. Code of
1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of
the Court of Appeals in CA-G.R. No. 23763-R is
affirmed. No Costs.