Holographic Wills Cases

Part B.
Wills Cessy Ciar - Page 1 of 56
Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same parties
had already been decided by us in the past. In G.R. No. L-30479, 1which was a
petition for certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the then Court of First
Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed
will, which was opposed by the private respondents presently, Panfilo and Felino
both surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this Court on
a petition for review by certiorari. 2 Acting on the said petition, we set aside the
trial court's order and directed it to proceed to hear the case on the merits. The
trial court, after hearing, found the will to have already been revoked by the
testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate Appellate Court which, on
June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of
the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the
private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement of
their aunt's estate. The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736. However, while the
case was still in progress, or to be exact on February 1, 1964, the parties
Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division of the
estate into four equal parts among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for approval which the
court did on March 21, 1964. That should have signalled the end of the
controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the last will and testament of Adriana.
Atty. Palma claimed to have found the testament, the original copy, while he
was going through some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of the clerk of the Court
of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino
are still named as heirs in the said will, Aldina and Constancio are bequeathed
much bigger and more valuable shares in the estate of Adriana than what they
received by virtue of the agreement of extrajudicial settlement they had earlier
signed. The will likewise gives devises and legacies to other parties, among
them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo,
and Purificacion Miraflor.`
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and
legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance
of the will When the trial court denied their motion, the petitioner came to us by
way of a petition for certiorari and mandamus assailing the orders of the trial
court . 3 As we stated earlier, we dismissed that petition and advised that a
separate proceeding for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Part B. Wills Cessy Ciar - Page 2 of 56
Significantly, the appellate court while finding as inconclusive the matter on

whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had been revoked.
The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate
court based its finding on the facts that the document was not in the two safes
in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to
retrieve a copy of the will left in the latter's possession, and, her seeking the
services of Atty. Palma in order to have a new will drawn up. For reasons shortly
to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or not
the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
coupled with animus revocandi on the part of the testator. It is not imperative
that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in
the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned
by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at
all, much less the will of Adriana Maloto. For another, the burning was not
proven to have been done under the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses, Guadalupe and Eladio, were
one in stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as a will
were burned.
Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in
case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned,
torn cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established,
and the estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the destruction is
The respondent appellate court in assessing the evidence presented by the

private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records before
us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio
Itchon, both illiterates, were unequivocably positive that the document burned
was indeed Adriana's will. Guadalupe, we think, believed that the papers she
destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony on this point is
double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported win is not denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will be shaken to its very
foundations ...." 4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred
by res adjudicata. They claim that this bar was brought about by the petitioners'
failure to appeal timely from the order dated November 16, 1968 of the trial
court in the intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament of the late Adriana
Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy.
For a judgment to be a bar to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the enumerated
requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in
Special Proceeding No. 1736, although final, involved only the intestate
settlement of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of the subsequently
discovered will of the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial court, in the
intestate proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due execution and
validity, something which can not be properly done in an intestate settlement of
estate proceeding which is predicated on the assumption that the decedent left
no will. Thus, there is likewise no Identity between the cause of action in
intestate proceeding and that in an action for probate. Be that as it may, it
would be remembered that it was precisely because of our ruling in G.R. No. L30479 that the petitioners instituted this separate action for the probate of the
late Adriana Maloto's will. Hence, on these grounds alone, the position of the
private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore,
more valuable properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for the allowance of
Adriana Maloto's last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.
Paula Conde v. Roman Abaya(G.R. No. 4275; March 23, 1909)

Facts:
Casiano Abaya, unmarried, the son of Romualdo Abaya, died on April 6,
1899. Paula Conde,as the mother of Jose and Teopista Conde claims
that Casiano fathered the aforementioned. Paula moved for the settlement of
the intestate estate of Casiano. Roman Abaya opposed the appointment of an
administrator and claimed it for himself asbeing the nearest relative of the
deceased. Roman moved for the court to declare him to bethe sole heir
of Casiano Abaya, to the exclusion of all others, especially of Paula. The
trialcourt rendered a decision in favor of Paula and declared her to be the only
heir to theproperty. Roman Abaya appealed directly to the SC.
Issue:1. Whether in special proceedings for the administration and distribution
of -an intestateestate, an action might be brought to enforce the
acknowledgment of the natural child of the person from whom the inheritance is
derived. (Pimentel v. Palanca)
**2. whether or not the mother of a natural child now deceased, but who
survived theperson who, it is claimed, was his natural father, also deceased,
may bring an action for theacknowledgment of the natural filiation in favor of

such child in order to appear in hisbehalf to receive the inheritance from the
person who is supposed to be his natural father.
-The power to transmit the right of such action by the natural child to his
descendants cannot be sustained under the law, and still less to his mother.It is
without any support in law because the rule laid down in the code is most
positive,limiting in form, when establishing the exception for the exercise of
such right of action after the death of the presumed parents, as is shown
hereafter. It is not supported by any doctrine, because up to the present time no
argument has been presented, upon which even an approximate conclusion
could be based. Although the Civil Code considerably improved the condition of
recognized naturalchildren, granting them rights and actions that they did
not possess under the former laws,they were not, however, placed upon the
same plane as legitimate ones. The difference that separates these two classes
of children is still great, as proven by so many articles dealingwith the rights of
the family and with succession in relation to the members thereof. It maybe laid
down as a legal maxim, that whatever the code does not grant to the
legitimatechildren, or in connection with their rights, must still less be
understood as granted torecognized natural children or in connection with their
rights. There is not a singleexception in its provisions.The right of action
pertaining to the child to claim his legitimacy is in all respects superiorto that of
the child who claims acknowledgment as a natural child. And it is evident that
theright of action to claim his legitimacy is not one of those rights which the
legitimate childmay transmit by inheritance to his heirs; it forms no part of the
component rights of hisinheritance. If it were so, there would have been no
necessity to establish itstransmissibility to heirs as an exception in the terms
and conditions of article 118 of thecode. So that, in order that it may constitute
a portion of the childs inheritance, it is necessary that the conditions and the
terms contained in article 118 shall be present, sincewithout them, the right
that the child held during his lifetime, being personal and exclusivein principle,
and therefore, as a general rule not susceptible of transmission, would
andshould have been extinguished by his death. Therefore, where no express
provision likethat of article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle and without exception,
extinguished by his death, and cannot be transmitted as a portion of the
inheritance of the deceased child.

SUPREME COURT
Manila
EN BANC
G.R. No. L-2538
September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA.
DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate
the last will and testament of the deceased Mariano Molo y Legaspi executed on August
17, 1918. The oppositors-appellants brought the case on appeal to this Court for the
reason that the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province
of Rizal, without leaving any forced heir either in the descending or ascending line. He
was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by
his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17,
1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will
executed in 1918.
IV. The probate court erred in not holding that Molo's alleged will of August 17,
1918 was not executed in the manner required by law.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal
a petition, which was docketed as special proceeding No. 8022 seeking the probate of
the will executed by the deceased on June 20, 1939. There being no opposition, the will
was probated. However, upon petition filed by the herein oppositors, the order of the
court admitting the will to probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.
In view of the disallowance of the will executed on June 20, 1939, the widow on February
24, 1944, filed another petition for the probate of the will executed by the deceased on
August 17, 1918, which was docketed as special proceeding No. 56, in the same court.
Again, the same oppositors filed an opposition to the petition based on three grounds:
(1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that
said will has not been executed in the manner required by law and (3) that the will has
been subsequently revoked. But before the second petition could be heard, the battle for
liberation came and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for its reconstitution. As a
result, petitioner filed a new petition on September 14, 1946, similar to the one
destroyed, to which the oppositors filed an opposition based on the same grounds as
those contained in their former opposition. Then, the case was set for trial, and on May
28, 1948, the court issued an order admitting the will to probate already stated in the
early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.
I. The probate court erred in not holding that the present petitioner voluntarily
and deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the probate of another
alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court
with "unclean hands" and as such is not entitled to relief.
V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
In their first assignment of error, counsel for oppositors contend that the probate court
erred in not holding that the petitioner voluntarily and deliberately frustrated the probate
of the will dated June 20, 1939, in order to enable her to obtain the probate of the will
executed by the deceased on August 17, 1918, pointing out certain facts and
circumstances with their opinion indicate that petitioner connived with the witness
Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of
her knowledge that said will intrinsically defective in that "the one and only testamentory
disposition thereof was a "disposicion captatoria". These circumstances, counsel for the
appellants contend, constitute a series of steps deliberately taken by petitioner with a
view to insuring the realization of her plan of securing the probate of the 1918 will which
she believed would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for
petitioner who contends that to raise them in these proceedings which are entirely new
and distinct and completely independent from the other is improper and unfair as they
find no support whatsoever in any evidence submitted by the parties in this case. They
are merely based on the presumptions and conjectures not supported by any proof. For
this reason, counsel, contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that petitioner
had deliberately intended to frustrate the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other than a mere conjecture drawn from
the apparently unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will and the failure
of petitioner later to impeach the character of said witness in spite of the opportunity
given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court
that she was unable to impeach the character of her witness Canuto Perez because of
her inability to find witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the former case. The failure
of petitioner to present the testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his whereabouts could not be
found. Whether this is true or not is also for this Court to determine. It is likewise within
the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken
place in these proceedings which show in bold relief the true nature of the conduct,
behavior and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20,
1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will
was probated. Subsequently, however, upon petition of the herein oppositors, the order
of the court admitting said will to probate was set aside, over the vigorous opposition of
the herein petitioner, and the case was reopened. The reopening was ordered because of
the strong opposition of the oppositors who contended that he will had not been
executed as required by law. After the evidence of both parties had been presented, the
oppositors filed an extensive memorandum wherein they reiterated their view that the
will should be denied probate. And on the strenght of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer,
there was no need her to go through the order of filing the petition for the probate of the
will. She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will executed in 1918. But
for her conscience was clear and bade her to take the only proper step possible under
the circumstances, which is to institute the necessary proceedings for the probate of the
1939 will. This she did and the will was admitted to probate. But then the unexpected
happened. Over her vigorous opposition, the herein appellants filed a petition for
reopening, and over her vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the will to probate was set aside? That
was a contingency which petitioner never expected. Had appellants not filed their
opposition to the probate of the will and had they limited their objection to the intrinsic
validity of said will, their plan to defeat the will and secure the intestacy of the deceased
would have perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner
simply because she exerted every effort to protect her own interest and prevent the
intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the
second and third errors imputed to it by the counsel for appellants. Indeed, petitioner
cannot be considered guilty or estoppel which would prevent her from seeking the
probate of the 1918 will simply because of her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was in by her
husband as his universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot be blamed
being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will
of the deceased which was denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the
case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that
case are on all fours with the facts of this case. Hence, the doctrine is that case is here
controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson
case we are indeed impressed by their striking similarity with the facts of this case. We
do not need to recite here what those facts are; it is enough to point out that they
contain many points and circumstances in common. No reason, therefore, is seen by the
doctrine laid down in that case (which we quote hereunder) should not apply and control
the present case.
A subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason
to abandon said ruling because it is archaic or antiquated and runs counter to the
modern trend prevailing in American jurisprudence. They maintain that said ruling is no
longer controlling but merely represents the point of view of the minority and should,
therefore, be abandoned, more so if we consider the fact that section 623 of our Code of
Civil Procedure, which governs the revocation of wills, is of American origin and as such
should follow the prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the view, that
"an express revocation is immediately effective upon the execution of the subsequent
will, and does not require that it first undergo the formality of a probate proceeding". (p.
63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors,
and that view appears to be in controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made of American authorities
on the subject, we found ourselves in a pool of conflicting opinions perhaps because of
the peculiar provisions contained in the statutes adopted by each State in the subject of
revocation of wills. But the impression we gathered from a review and the study of the
pertinent authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in
1948, we found the following passages which in our opinion truly reflect the present
trend of American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily,
statutes which permit the revocation of a will by another writing provide that to
be effective as a revocation, the writing must be executed with the same
formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of
a valid will, an unattested non testamentary writing is not effective to revoke a
prior will. It has been held that a writing fails as a revoking instrument where it is
not executed with the formalities requisite for the execution of a will, even
though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to
himself the power to modify a will by a written instrument subsequently prepared
but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will
which is invalid because of the incapacity of the testator, or of undue influence
can have no effect whatever as a revoking will. Moreover, a will is not revoked by
the unexecuted draft of a later one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a controlling
statute that no writing other than a testamentary instrument is sufficient to
revoke a will, for the simple reason that there is no revoking will. Similarly where
the statute provides that a will may be revoked by a subsequent will or other
writing executed with the same formalities as are required in the execution of
wills, a defectively executed will does not revoke a prior will, since it cannot be
said that there is a writing which complies with the statute. Moreover, a will or
codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the testator to
revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328,
329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On
page 1400, Volume 123, there appear many authorities on the "application of rules
where second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of not
being executed in accordance with the provisions of the statute, or where the
testator who has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the second
will is really no will, it does not revoke the first will or affect it in any manner.
Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and good
and for this reason, we see no justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will
may be some will, codicil, or other writing executed as proved in case of wills" but it
cannot be said that the 1939 will should be regarded, not as a will within the meaning of
said word, but as "other writing executed as provided in the case of wills", simply
because it was denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing is admitted
to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will
of 1918 cannot still be given effect because of the presumption that it was deliberately
revoked by the testator himself. The oppositors contend that the testator, after executing
the 1939 will, and with full knowledge of the recovatory clause contained said will,
himself deliberately destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a duplicate of said
original.
There is no evidence which may directly indicate that the testator deliberately destroyed
the original of the 1918 will because of his knowledge of the revocatory clause contained
in the will he executed in 1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the
testator himself and apparently they remained in his possession until he executed his
second will in 1939. And when the 1939 will was denied probate on November 29, 1943,
and petitioner was asked by her attorney to look for another will, she found the duplicate
copy (Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a
duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be destroyed.
But this was not done as shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long lapse of twenty-one (21)
years since the first will was executed, the original of the will had been misplaced or lost,
and forgetting that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the conclusion
we may draw from this chain of circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first will by the testator. This
matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the
testator after the execution of the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed by the testator in the honest
belief that it was no longer necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of the earlier will was but the
necessary consequence of the testator's belief that the revocatory clause contained in
the subsequent will was valid and the latter would be given effect? If such is the case,
then it is our opinion that the earlier will can still be admitted to probate under the
principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually
applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was
destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator meant
the revocation of the old to depend upon the efficacy of a new disposition
intended to be substituted, the revocation will be conditional and dependent
upon the efficacy of the new disposition; and if, for any reason, the new will
intended to be made as a substitute is inoperative, the revocation fails and the
original will remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will
in the place of that destroyed will not render the destruction conditional. It must
appear that the revocation is dependent upon the valid execution of a new will.
(1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by
the testator could be presumed from the failure of the petitioner to produce it in court,
such destruction cannot have the effect of defeating the prior will of 1918 because of the
fact that it is founded on the mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on which this principle is predicated
is that the testator did not intend to die intestate. And this intention is clearly manifest
when he executed two wills on two different occasion and instituted his wife as his
universal heir. There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to
prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only instrumental witness available
was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove
the due execution of the will. However, petitioner presented not only the testimony of
Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared
and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness
and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.
Molo vs. Molo

G.R. No. L-2538 September 21, 1951
Bautista Angelo, J. (Ponente)
Doctrine of Dependent Relative Revocation
Facts:
1. Marcos Molo executed 2 wills, one in August 1918 and another in June 1939. The
latter will contained a revocation clause which expressly revoked the will in 1918. He
died without any forced heirs but he was survived by his wife, herein petitioner Juana.
The oppositors to the probate were his nephews and nieces.
2. Only a carbon copy of the second will was found. The widow filed a petition for the
probate of the 1939 will. It was admitted to probate but subsequently set aside on
ground that the petitioner failed to prove its due execution.
3. As a result, the petitioner filed another petition for the probate of the 1918 will this
time. Again the oppositors alleged that said will had already been revoked under the
1939 will. They contended that despite the disallowance of the 1939 will, the revocation
clause is valid and thus effectively nullified the 1918 will.
Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.
Issue: Whether or not the 1918 will can still be valid despite the revocation in
the subsequent disallowed 1939 will
RULING: Yes.The court applied the doctrine laid down in Samson v. Naval that a
subsequent will,containing a clause revoking a previous will, having been disallowed for
the reason that it was not executed in accordance with law cannot produce the effect of
annulling the previous will, inasmuch as the said revocatory clause is void.
There was no valid revocation in this case. No evidence was shown that the testator
deliberately destroyed the original 1918 will because of his knowledge of the revocatory
clause contained in the will executed in 1939.The earlier will can still be probated
under the principle of dependent relative revocation.The doctrine applies
when a testator cancels or destroys a will or executes an instrument intended
to revoke a will with the intention to make a new testamentary disposition as
substitute for the old, and the new disposition fails of effect for some reason.
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;

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO
B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
(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:
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.
(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
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:
(2) Lost or destroyed holographic wills cannot be proved by

secondary evidence unlike ordinary wills.
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
Upon opposition of the appellant, the motion to dismiss was

denied by the court in its order of February 23, 1979.
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT

HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC
WILL;
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.
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.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ.,
concur.
Rodelas v. Aranza
G.R. No. L-58509 December 7, 1982
Relova, J. (Ponente)

SUPREME COURT
Manila
Facts:
1. The appellant filed a petition for the probate of the holographic will of Ricardo
Bonilla in 1977. The petition was opposed by the appellees on the ground that
the deceased did not leave any will, holographic or otherwise.
EN BANC
2. The lower court dismissed the petition for probate and held that since the
original will was lost, a photostatic copy cannot stand in the place of the
original.
G.R. No. L-14003
August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
Issue: Whether or not a holographic will can be proved by means of a photocopy

RULING: Yes. A photocopy of the lost or destroyed holographic will may be
admitted because the authenticity of the handwriting of the deceased can be
determined by the probate court with the standard writings of the testator.
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. G-2), and that there were further exhibited
in court two residence certificates (Exhs. H and H-1) to show the signatures of
the testatrix, for comparison purposes; that said witness, Azaola, testified that
the penmanship appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must have been written by
her" (t.s.n., p. 11). However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was asked again
whether the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely
say it is hers"; that it was also established in the proceedings that the assessed
value of the property of the deceased in Luskot, Quezon City, is in the amount of
P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and
his wife, and (2) that the testatrix did not seriously intend the instrument to be her last
will, and that the same was actually written either on the 5th or 6th day of August 1957
and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and because
the lone witness presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the
handwriting and signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If
the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a).
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.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David,
JJ., concur.
Azaola v. Singson (1960) [110]

The three-witness provision in case of contested holographic wills is
directory, not mandatory.
Since the authenticity of the will was not contested, proponent was not
required to produce more than one witness; but even if the genuineness
of the holographic will were contested, Art. 811 cannot be interpreted as
to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under the 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, it becomes obvious that
the existence of witnesses possessing the requisite qualifications is a
matter beyond the control of the proponent.
Art. 811 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. Such resort to expert evidence
is conditioned by if the Court deem it necessary, which reveal that
what the law deems essential is that the Court should be convinced of
the wills authenticity. Since the law leaves it to the trial court to decide
if experts are still needed, no unfavorable inference can be drawn from a
partys failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
SCs conclusion: the rule of Art. 811, par. 1, is merely directory and is
not mandatory.

SUPREME COURT
Manila
EN BANC
G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO,
LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
CONSUELO CUENCO REYES, and TERESITA CUENCO GONZALEZ, respondents.
Ambrosio Padilla Law Office for petitioner.
Jalandoni and Jamir for respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No.
34104-R, promulgated 21 November 1964, and its subsequent Resolution promulgated 8
July 1964 denying petitioner's Motion for Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital,
Manila. He was survived by his widow, the herein petitioner, and their two (2) minor
sons, Mariano Jesus, Jr. and Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y
Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco
Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of
legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent Lourdes
Cuenco filed a Petition for Letters of Administration with the court of first instance of
Cebu (Sp. Proc. No. 2433-R), alleging among other things, that the late senator
died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time
of his death; and that he left real and personal properties in Cebu and Quezon City. On
the same date, the Cebu court issued an order setting the petition for hearing on 10 April
1964, directing that due notice be given to all the heirs and interested persons, and
ordering the requisite publication thereof at LA PRENSA, a newspaper of general
circulation in the City and Province of Cebu.
The aforesaid order, however, was later suspended and cancelled and a new and
modified one released on 13 March 1964, in view of the fact that the petition was to be
heard at Branch II instead of Branch I of the said Cebu court. On the same date, a third
order was further issued stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March 1964 was not yet ready for the
consideration of the said court, giving as reasons the following:
It will be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding, the requisite
publication of the notice of hearing not yet having been complied with.
Moreover, copies of the petition have not been served on all of the heirs
specified in the basic petition for the issuance of letters of
administration. 2
In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu
petition) herein petitioner Rosa Cayetano Cuenco filed a petition with the court of first
instance of Rizal (Quezon City) for the probate of the deceased's last will and
testament and for the issuance of letters testamentary in her favor, as the surviving
widow and executrix in the said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano
Cuenco filed in said Cebu court an Opposition and Motion to Dismiss, dated 30 March
1964, as well as an Opposition to Petition for Appointment of Special Administrator,
dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding in
abeyance its resolution on petitioner's motion to dismiss "until after the Court of First
Instance of Quezon City shall have acted on the petition for probate of that document
purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco." 3 Such order of the Cebu court deferring to the probateproceedings in the
Quezon City court was neither excepted to nor sought by respondents to be reconsidered
or set aside by the Cebu court nor did they challenge the same by certiorari or
prohibition proceedings in the appellate courts.
Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss,
dated 10 April 1964,opposing probate of the will and assailing the jurisdiction of the said
Quezon City court to entertain petitioner's petition for probate and for appointment as
executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested by
her petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp.
Proc. No. Q-7898 be dismissed for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving
as a principal reason the "precedence of probate proceeding over an intestate
proceeding." 4 The said court further found in said order that theresidence of the late
senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon
City. The pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5 of the
opposition and motion to dismiss reads as follows: "that since the
decedent Don Mariano Jesus Cuenco was a resident of the City of Cebu at
the time of his death, the aforesaid petition filed by Rosa Cayetano
Cuenco on 12 March 1964 was not filed with the proper Court (wrong
venue) in view of the provisions of Section 1 of Rule 73 of the New Rules
of Court ...". From the aforequoted allegation, the Court is made to
understand that the oppositors do not mean to say that the decedent
being a resident of Cebu City when he died, the intestate proceedings in
Cebu City should prevail over the probate proceedings in Quezon City,
because as stated above the probate of the will should take precedence,
but that the probate proceedings should be filed in the Cebu City Court of
First Instance. If the last proposition is the desire of the oppositors as
understood by this Court, that could not also be entertained as proper
because paragraph 1 of the petition for the probate of the will indicates
that Don Mariano Jesus Cuenco at the time of his death was a resident of
Quezon City at 69 Pi y Margal. Annex A (Last Will and Testament of
Mariano Jesus Cuenco) of the petition for probate of the will shows that
the decedent at the time when he executed his Last Will clearly stated
that he is a resident of 69 Pi y Margal, Sta. Mesa Heights, Quezon City,
and also of the City of Cebu. He made the former as his first choice and
the latter as his second choice of residence." If a party has two
residences, the one will be deemed or presumed to his domicile which he
himself selects or considers to be his home or which appears to be the
center of his affairs. The petitioner, in thus filing the instant petition
before this Court, follows the first choice of residence of the decedent
and once this court acquires jurisdiction of the probate proceeding it is to
the exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said
order of 11 April 1964 asserting its exclusive jurisdiction over the probate proceeding as
deferred to by the Cebu court was denied on 27 April 1964 and a second motion for
reconsideration dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of
the last will of the decedent was called three times at half-hour intervals, but
notwithstanding due notification none of the oppositors appeared and the Quezon City
court proceeded at 9:00 a.m. with the hearing in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted
that respondents-oppositors had opposed probate under their opposition and motion to
dismiss on the following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and
influence on the part of the beneficiary or some other persons for his
benefit;
(c) That the testator's signature was procured by fraud and/or that the
testator acted by mistake and did not intend that the instrument he
signed should be his will at the time he affixed his signature thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the
hearing had been duly complied with and that all the heirs had been duly notified of the
hearing, and after receiving the testimony of the three instrumental witnesses to the
decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P.
Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will,
and the documentary evidence (such as the decedent's residence certificates, income
tax return, diplomatic passport, deed of donation) all indicating that the decedent was a
resident of 69 Pi y Margal St., Quezon City, as also affirmed by him in his last will, the
Quezon City court in its said order of 15 May 1964 admitted to probate the late senator's
last will and testament as having been "freely and voluntarily executed by the testator"
and "with all formalities of the law" and appointed petitioner-widow as executrix of his
estate without bond "following the desire of the testator" in his will as probated.
Instead of appealing from the Quezon City court's said order admitting the will to
probate and naming petitioner-widow as executrix thereof, respondents filed a special
civil action of certiorari and prohibition with preliminary injunction with respondent Court
of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents
(petitioners therein) and against the herein petitioner, holding that:
Section 1, Rule 73, which fixes the venue in proceedings for the
settlement of the estate of a deceased person, covers both testate and
intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI having been filed
ahead, it is that court whose jurisdiction was first invoked and which first
attached. It is that court which can properly and exclusively pass upon
the factual issues of (1) whether the decedent left or did not leave a valid
will, and (2) whether or not the decedent was a resident of Cebu at the
time of his death.
Considering therefore that the first proceeding was instituted in the Cebu
CFI (Special Proceeding 2433-R), it follows that the said court must
exercise jurisdiction to the exclusion of the Rizal CFI, in which the petition
for probate was filed by the respondent Rosa Cayetano Cuenco (Special
Proceeding Q-7898). The said respondent should assert her rights within
the framework of the proceeding in the Cebu CFI, instead of invoking the
jurisdiction of another court.
The respondents try to make capital of the fact that on March 13, 1964,
Judge Amador Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated
that the petition for appointment of special administrator was "not yet
ready for the consideration of the Court today. It would be premature for
this Court to act thereon, it not having yet regularly acquired jurisdiction
to try this proceeding ... . " It is sufficient to state in this connection that
the said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a
petition is filed, but only to theexercise of jurisdiction in relation to the
stage of the proceedings. At all events, jurisdiction is conferred and
determined by law and does not depend on the pronouncements of a
trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and
directing the respondent Court of First Instance of Rizal, Branch IX,
Quezon City, and the respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in Special Proceeding

Q-7898 pending before the said respondent court. All orders heretofore
issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled.
The writ of injunction heretofore issued is hereby made permanent. No
pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of respondent Court of
Appeals, dated 8 July 1965; hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the appellate court erred
in law in issuing the writ of prohibition against the Quezon City court ordering it to refrain
perpetually from proceeding with the testateproceedings and annulling and setting aside
all its orders and actions, particularly its admission to probate of the decedent's last will
and testament and appointing petitioner-widow as executrix thereof without bond in
compliance with the testator's express wish in his testament. This issue is tied up with
the issue submitted to the appellate court, to wit, whether the Quezon City court acted
without jurisdiction or with grave abuse of discretion in taking cognizance and assuming
exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the Cebu
court's order of 10 April 1964 expressly consenting in deference to the precedence of
probate over intestate proceedings that it (the Quezon City court) should first act "on the
petition for probate of the document purporting to be the last will and testament of the
deceased Don Mariano Jesus Cuenco" - which order of the Cebu court respondents never
questioned nor challenged by prohibition or certiorari proceedings and thus enabled the
Quezon City court to proceed without any impediment or obstruction, once it denied
respondent Lourdes Cuenco's motion to dismiss the probate proceeding for alleged lack
of jurisdiction or improper venue, toproceed with the hearing of the petition and
to admit the will to probate upon having been satisfied as to its due execution and
authenticity.
The Court finds under the above-cited facts that the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court from proceeding with the
testate proceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the deceased's last will and testament and
appointing petitioner-widow as executrix thereof without bond pursuant to the deceased
testator's express wish, for the following considerations:
1. The Judiciary Act 7 concededly confers original jurisdiction upon all Courts of First
Instance over "all matter of probate, both of testate and intestate estates." On the other
hand, Rule 73, section of the Rules of Court lays down the rule of venue, as the very
caption of the Rule indicates, and in order to prevent conflict among the different courts
which otherwise may properly assume jurisdiction from doing so, the Rule specifies that
"the court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts." The cited Rule provides:
Section 1. Where estate of deceased persons settled. If the decedent is

an inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, his will shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in the Province in
which he resides at the time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of the province in which he
had estate. The court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence, of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal from
that court, in the original case, or when the want of jurisdiction
appears on the record. (Rule 73) 8
It is equally conceded that the residence of the deceased or the location of his estate
is not an element of jurisdiction over the subject matter but merely of venue. This was
lucidly stated by the late Chief Justice Moran inSy Oa vs. Co Ho 9 as follows:
We are not unaware of existing decisions to the effect that in probate
cases the place of residence of the deceased is regarded as a question of
jurisdiction over the subject-matter. But we decline to follow this view
because of its mischievous consequences. For instance, a probate case
has been submitted in good faith to the Court of First Instance of a
province where the deceased had not resided. All the parties, however,
including all the creditors, have submitted themselves to the jurisdiction
of the court and the case is therein completely finished except for a
claim of a creditor who also voluntarily filed it with said court but on
appeal from an adverse decision raises for the first time in this Court the
question of jurisdiction of the trial court for lack of residence of the
deceased in the province. If we consider such question of residence as
one affecting the jurisdiction of the trial court over the subject-matter,
the effect shall be that the whole proceedings including all decisions on
the different incidents which have arisen in court will have to
be annulled and
the same
case will
have
to
be commenced
anew before another court of the same rank in another province. That
this is ofmischievous effect in the prompt administration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R.
No. 48206, December 31, 1942) Furthermore, section 600 of Act No.
190, 10 providing that the estate of a deceased person shall be settled in
the province where he had last resided, could not have been intended as
defining the jurisdiction of the probate court over the subject-matter,
because such legal provision is contained in a law of procedure dealing
merely with procedural matters, and, as we have said time and again,
procedure is one thing and jurisdiction over the subject matter is
another. (Attorney-General vs. Manila Railroad Company, 20 Phil. 523.)

The law of jurisdiction Act No. 136, 11 Section 56, No. 5 confers upon
Courts of First Instance jurisdiction over all probate cases independently
of the place of residence of the deceased. Since, however, there are
many courts of First Instance in the Philippines, the Law of Procedure, Act
No. 190, section 600, fixes the venue or the place where each case shall
be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject-matter but merely of venue. And
it is upon this ground that in the new Rules of Court the province where
the estate of a deceased person shall be settled is properly called
"venue".
It should be noted that the Rule on venue does not state that the court with whom the
estate or intestate petition is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance of the
settlement of the estateof a decedent, shall exercise jurisdiction to the exclusion of all
other courts."
A fair reading of the Rule since it deals with venue and comity between courts of equal
and co-ordinate jurisdiction indicates that the court with whom the petition is first
filed, must also first take cognizance of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's
last will has been presented in another court where the decedent obviously had his
conjugal domicile and resided with his surviving widow and their minor children, and that
the allegation of the intestate petition before it stating that the decedent
died intestate may be actually false, may decline to take cognizance of the petition and
hold the petition before it in abeyance, and instead defer to the second court which has
before it the petition for probate of the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to
dismiss Lourdes' intestate petition, it issued its order holding in abeyance its action on
the dismissal motion and deferred to the Quezon City court, awaiting its action on the
petition for probate before that court. Implicit in the Cebu court's order was that if the
will was duly admitted to probate, by the Quezon City court, then it would definitely
decline to take cognizance of Lourdes' intestate petition which would thereby be shown
to be false and improper, and leave the exercise of jurisdiction to the Quezon City court,
to the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it
to the Quezon City court to resolve the question between the parties whether the
decedent's residence at the time of his death was in Quezon City where he had
his conjugal domicile rather than in Cebu City as claimed by respondents. The Cebu
court thus indicated that it would decline to take cognizance of the intestate petition
before it and instead defer to the Quezon City court, unless the latter would make a
negative finding as to the probate petition and the residence of the decedent within its
territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without jurisdiction
or with grave abuse of jurisdiction in declining to take cognizance of
the intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition since under Rule
73, section 1, the Cebu court must first take cognizance over the estate of the decedent
and must exercise jurisdiction to exclude all other courts, which the Cebu court declined
to do. Furthermore, as is undisputed, said rule only lays down a rule of venue and the
Quezon City court indisputably had at least equal and coordinate jurisdiction over the
estate.
Since the Quezon City court took cognizance over the probate petition before it
and assumed jurisdiction over the estate, with the consent and deference of the Cebu
court, the Quezon City court should be left now, by the same rule of venue of said Rule
73, to exercise jurisdiction to the exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing
despite due notice, the Quezon City court cannot be declared, as the appellate court did,
to have acted without jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in accordance with the
testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority against respondent
appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings over
intestate proceedings in this wise:
It can not be denied that a special proceeding intended to effect the
distribution of the estate of a deceased person, whether in accordance
with the law on intestate succession or in accordance with his will, is a
"probate matter" or a proceeding for the settlement of his estate. It is
equally true, however, that in accordance with settled jurisprudence in
this jurisdiction, testate proceedings for the settlement of the estate of a
deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance it is found

that the decedent had left a last will, proceedings for the probate of the
latter should replace the intestate proceedings even if at that state an
administrator had already been appointed, the latter being required to
render final account and turn over the estate in his possession to the
executor subsequently appointed. This however, is understood to be
without prejudice that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an intestacy. As already
adverted to, this is a clear indication that proceedings for the probate of
a will enjoy priority over intestate proceedings. 14
The Court likewise therein upheld the jurisdiction of the second court, (in this case, the
Quezon City court) although opining that certain considerations therein "would seem to
support the view that [therein respondent] should have submitted said will for probate to
the Negros Court, [in this case, the Cebu court] either in a separate special proceeding or
in an appropriate motion for said purpose filed in the already pending Special Proceeding
No. 6344," 15 thus:
But the fact is that instead of the aforesaid will being presented for probate to the
Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila
Court. We can not accept petitioner's contention in this regard that the latter court had
no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.
It is well settled in this jurisdiction that wrong venue is merely
a waivable procedural defect, and, in the light of the circumstances
obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded
from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite
since December 19, 1961 when Higinio Uriarte filed his opposition to the
initial petition filed in Special Proceeding No. 6344; that petitioner
likewise was served with notice of the existence (presence) of the
alleged last will in the Philippines and of the filing of the petition for its
probate with the Manila Court since August 28, 1962 when Juan Uriarte
Zamacona filed a motion for the dismissal of Special Proceeding No.
6344. All these notwithstanding, it was only on April 15, 1963 that he
filed with the Manila Court in Special Proceeding No. 51396 an Omnibus
motion asking for leave to intervene and for the dismissal and annulment
of all the proceedings had therein up to that date; thus enabling the
Manila Court not only to appoint an administrator with the will annexed
but also to admit said will to probate more than five months earlier, or
more specifically, on October 31, 1962. To allow him now to assail the
exercise of jurisdiction over the probate of the will by the Manila Court
and the validity of all the proceedings had in Special Proceeding No.
51396 would put a premium on his negligence. Moreover, it must be
remembered that this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper venue therefor,
if the net result would be to have the same proceedings repeated in
some other court of similar jurisdiction; more so in a case like the present
where the objection against said proceedings is raised too late. 16
5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over
the decedent's estate on the basis of the will duly presented for probate by petitionerwidow and finding that Quezon City was the firstchoice of residence of the decedent,
who had his conjugal home and domicile therein with the deference in comity duly
given by the Cebu court could not be contested except by appeal from said court in
the original case. The last paragraph of said Rule expressly provides:
... The jurisdiction assumed by a court, so far as it depends on the place
of residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on the record.
(Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on the record"
could probably be properly invoked, had such deference in comity of the Cebu court to
the Quezon City court not appeared in the record, or had the record otherwise shown
that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be the residence of the late senator,
the appellate court while recognizing that "the issue is a legitimate one" held in reliance
on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of whichever
court is considered to prevail in the exercise jurisdiction - in this case, the
Court of First Instance of Cebu as held by this Court. Parenthetically, we
note that the question of the residence of the deceased is a serious one,
requiring both factual and legal resolution on the basis of ample
evidence to be submitted in the ordinary course of procedure in the first
instance, particularly in view of the fact that the deceased was better
known as the Senator from Cebu and the will purporting to be his also
gives Cebu, besides Quezon City, as his residence. We reiterate that this
matter requires airing in the proper court, as so indicated in the leading
and controlling case of Borja vs. Hon. Bienvenido Tan, et al., G.R. L-7792,
July 27, 1955.
In the case at bar, however, the Cebu court declined to take cognizance of
the intestate petition first filed with it and deferred to the testate proceedings filed with
the Quezon City court and in effect asked the Quezon City court to determine the
residence of the decedent and whether he did leave a last will and testament upon which
would depend the proper venue of the estate proceedings, Cebu or Quezon City. The
Quezon City court having thus determined in effect for both courts at the
behest and with the deference and consent of the Cebu court thatQuezon City was
the actual residence of the decedent who died testate and therefore the proper venue,
the Borja ruling would seem to have no applicability. It would not serve the practical ends
of justice to still require the Cebu court, if the Borja ruling is to be held applicable and as
indicated in the decision under review, to determine for itself the actual residence of the
decedent (when the Quezon City court had already so determined Quezon City as the
actual residence at the Cebu court's behest and respondents have not seriously
questioned this factual finding based on documentary evidence) and if the Cebu court
should likewise determine Quezon City as the actual residence, or its contrary finding
reversed on appeal, only then to allow petitioner-widow after years of waiting and
inaction to institute the corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be upheld when it is taken into
consideration that Rule 76, section 2 requires that the petition for allowance of a will
must show: "(a) the jurisdictional facts." Such "jurisdictional facts" in probate
proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the
decedent, his residence at the time of his death in the province where the probate court
is sitting, or if he is an inhabitant of a foreign country, his having left his estate in such
province."
This tallies with the established legal concept as restated by Moran that
"(T)he probate of a will is a proceeding in rem. The notice by publication as a prerequisite to the allowance of a will, is a constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding upon everybody, even against
the State.The probate of a will by a court having jurisdiction thereof is conclusive as to
its due execution and validity." 19 The Quezon City court acted regularly within its
jurisdiction (even if it were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in admitting the
decedent's last will to probate and naming petitioner-widow as executrix thereof. Hence,
the Quezon city court's action should not be set aside by a writ of prohibition for
supposed lack of jurisdiction as per the appellate court's appealed decision, and should
instead be sustained in line with Uriarte, supra, where the Court, in dismissing
the certiorari petition challenging the Manila court's action admitting the decedent's will
to probate and distributing the estate in accordance therewith in the second proceeding,
held that "it must be remembered that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the proper venue therefor, if the
net result would be to have the same proceedings repeated in some other court of
similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous
effect in the administration of justice" of considering the question of residence as

affecting the jurisdiction of the trial court and annulling the whole proceedings only to
start all over again the same proceedings before another court of the same rank in
another province "is too obvious to require comment."
8. If the question of jurisdiction were to be made to depend only on who of the
decedent's relatives gets first to file a petition for settlement of the decedent's estate,
then the established jurisprudence of the Court that Rule 73, section 1 provides only a
rule of venue in order to preclude different courts which may properly
assumejurisdiction from doing so and creating conflicts between them to the detriment
of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a
race as to who can file the petition faster in the court of his/her choice regardless of
whether the decedent is still in cuerpo presente and in disregard of the decedent's actual
last domicile, the fact that he left a last will and testament and the right of his surviving
widow named as executrix thereof. Such dire consequences were certainly not intended
by the Rule nor would they be in consonance with public policy and the orderly
administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under all the
applicable rules of venue, and despite the fact that the Cebu court (where respondent
Lourdes Cuenco had filed an intestate petition in the Cebu court earlier by a week's time
on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen
days (on March 12, 1964) after the decedent's death (on February 25, 1964) timely filed
the decedent's last will and petitioned for letters testamentary and is admittedly entitled
to preference in the administration of her husband's estate, 20 would be compelled under
the appealed decision to have to go all the way to Cebu and submit anew the decedent's
will there for probate either in a new proceeding or by asking that the intestate
proceedings be converted into a testate proceeding when under the Rules, the
proper venue for the testate proceedings, as per the facts of record and as already
affirmed by the Quezon City court is Quezon City, where the decedent and petitionerwidow had their conjugal domicile.
It would be an unfair imposition upon petitioner as the one named and entitled to be
executrix of the decedent's last will and settle his estate in accordance therewith, and a
disregard of her rights under the rule on venue and the law on jurisdiction to require her
to spend much more time, money and effort to have to go from Quezon City to the Cebu
court everytime she has an important matter of the estate to take up with the probate
court.
It would doubly be an unfair imposition when it is considered that under Rule 73, section
2, 21 since petitioner's marriage has been dissolved with the death of her husband, their
community property and conjugal estate have to beadministered and liquidated in the
estate proceedings of the deceased spouse. Under the appealed decision,
notwithstanding that petitioner resides in Quezon City, and the proper venue of
the testate proceeding was in Quezon City and the Quezon City court properly took
cognizance and exercised exclusive jurisdiction with the deference in comity and consent
of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner
would have to continually leave her residence in Quezon City and go to Cebu to settle
and liquidate even her own community property and conjugal estate with the decedent.
10. The Court therefore holds under the facts of record that the Cebu court did not act
without jurisdiction nor with grave abuse of discretion in declining to take cognizance of
the intestate petition and instead deferring to thetestate proceedings filed just a week
later by petitioner as surviving widow and designated executrix of the decedent's last
will, since the record before it (the petitioner's opposition and motion to dismiss) showed
the falsityof the allegation in the intestate petition that the decedent had died without a
will. It is noteworthy that respondents never challenged by certiorari or prohibition
proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's
order of deference) to exercise jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be held to have acted without
jurisdiction nor with grave abuse of discretion in admitting the decedent's will to probate
and appointing petitioner as executrix in accordance with its testamentary disposition, in
the light of the settled doctrine that the provisions of Rule 73, section 1 lay down only a
rule of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the Quezon City court's order of
May 15, 1964 admitting the will to probate and appointing petitioner as executrix
thereof, and said court concededly has jurisdiction to issue said order, the said order of
probate has long since become final and can not be overturned in a special civic action
of prohibition.
11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory
authority over all inferior courts, 22 it may properly determine, as it has done in the case
at bar, that venue was properly assumed by and transferredto the Quezon City court and
that it is the interest of justice and in avoidance of needless delay that the Quezon City
court's exercise of jurisdiction over the testate estate of the decedent (with the due
deference and consent of the Cebu court) and its admission to probate of his last will and
testament and appointment of petitioner-widow as administratrix without bond in
pursuance of the decedent's express will and all its orders and actions taken in the
testate proceedings before it be approved and authorized rather than to annul all such
proceedings regularly had and to repeat and duplicate the same proceedings before the
Cebu court only to revert once more to the Quezon City court should the Cebu court find
that indeed and in fact, as already determined by the Quezon City court on the strength
of incontrovertible documentary evidence of record, Quezon City was the conjugal
residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and

resolution of the Court of Appeals and the petition for certiorari and prohibition with
preliminary injunction originally filed by respondents with the Court of Appeals (CA-G.R.
No. 34104-R) is ordered dismissed. No costs.
Senator Mariano Jesus Cuenco died in Manila. He was survived by

his widow and two minor sons, residing in Quezon City, and
children of the first marriage, residing in Cebu. Lourdes, one of the
children from the first marriage, filed a Petition for Letters of
Administration with the Court of First Instance (CFI) Cebu, alleging
that the senator died intestate in Manila but a resident of Cebu
with
properties
in
Cebu
and
Quezon
City.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.

Fernando and Castro, JJ., took no part.
Separate Opinions
The petition still pending with CFI Cebu, Rosa Cayetano Cuenco,
the second wife, filed a petition with CFI Rizal for the probate of
the last will and testament, where she was named executrix. Rosa
also filed an opposition and motion to dismiss in CFI Cebu but this
court held in abeyance resolution over the opposition until CFI
Quezon shall have acted on the probate proceedings.
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of respondents to question within a
reasonable time the laying of the venue in the Quezon City Court of First Instance and
the assumption of jurisdiction by that court, after the Court of First Instance of Cebu
deferred in its favor, in order to prevent the holding therein of any proceeding and trial,
and their having filed therein a formal opposition to the probate of the will, makes them
guilty of laches, for which reason they are not entitled to the equitable relief prayed for
in the present petition.
Lourdes filed an opposition and motion to dismiss in CFI Quezon,

on ground of lack of jurisdiction and/or improper venue,
considering that CFI Cebu already acquired exclusive jurisdiction
over the case. The opposition and motion to dismiss were denied.
Upon appeal CA ruled in favor of Lourdes and issued a writ of
prohibition
to
CFI
Quezon.
Separate Opinions BARREDO, J., concurring:

I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents to question within a
reasonable time the laying of the venue in the Quezon City Court of First Instance and
the assumption of jurisdiction by that court, after the Court of First Instance of Cebu
deferred in its favor, in order to prevent the holding therein of any proceeding and trial,
and their having filed therein a formal opposition to the probate of the will, makes them
guilty of laches, for which reason they are not entitled to the equitable relief prayed for
in the present petition.
G.R. No. L-24742, October 26, 1973

o
The court first taking cognizance of the settlement of the

estate of a decedent, shall exercise jurisdiction to the exclusion of
all other courts
FACTS:
ISSUEs:
o
o
Whether or not CA erred in issuing the writ of prohibition

Whether or not CFI Quezon acted without jurisdiction or
grave abuse of discretion in taking cognizance and assuming
exclusive jurisdiction over the probate proceedings in pursuance to
CFI Cebu's order expressly consenting in deference to the
precedence of probate over intestate proceedings
HELD:
The Supreme Court found that CA erred in law in issuing the writ of
prohibition against the Quezon City court from proceeding with the
testate proceedings and annulling and setting aside all its orders
and actions, particularly its admission to probate of the last will
and testament of the deceased and appointing petitioner-widow as

executrix thereof without bond pursuant to the deceased testator's
wish.
On
Venue
and
Jurisdiction
Under Rule 73, the court first taking cognizance of the settlement
of the estate of a decent, shall exercise jurisdiction to the
exclusion
of
all
other
courts.
FIRST DIVISION
The residence of the decent or the location of his estate is not an

element of jurisdiction over the subject matter but merely of
venue. If this were otherwise, it would affect the prompt
administration
of
justice.
[G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents.
The court with whom the petition is first filed must also first take
cognizance of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other courts.
DECISION
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 the will was written voluntarily.
The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging that the holographic will was a forgery
and that the same is even illegible. This gives an impression that a third hand of an
interested party other than the true hand of Matilde Seo Vda. de Ramonal executed the
holographic will.
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 produce
and identify the voters affidavit of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no longer available.
Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who executed
the will, and 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.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter lived with
her in her parents house for eleven (11) years, from 1958 to 1969. During those eleven
(11) years of close association with the deceased, she acquired familiarity with her
signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de
Ramonal) in collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried personal letters
of the deceased to her creditors.
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.
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.
On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
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 intestate 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.
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, and in support of
their appeal, the respondents once again reiterated the testimony of the following
[8]
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 deceased 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:
"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.
Instruction
August 30, 1978
"August 30,1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
August 30, 1978
Mama
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision [9] ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
August 30, 1978

3. My jewelrys 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
x x x even if the genuineness of the holographic will were contested, we are of

the opinion that Article 811 of our present civil code can not be interpreted as to 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
testators hand; or even if so familiarized, the witness may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
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:
It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805).Where the 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.
(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 prove that the
date, text, and signature on the holographic will were 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.
Again, under Art.811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the
court should be convinced of the wills authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the court
may still, and in fact it should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
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.
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 partys failure to
offer expert evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.[10]
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.
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.
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]
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 the 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 voters 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
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
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 that is a signature of Matilde vda. De Ramonal?

A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records 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
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
Q. You testified that at the 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. Now, Mrs. Binanay was there any particular reason why your mother left that will to
you and therefore you have that in your possession?
Q. Showing to you this exhibit S, there is that handwritten tugon, whose

handwriting is this?
A. It was not given to me by my mother, I took that in the aparador when she died.
A. My aunt.
Q. After taking that document you kept it with you?
Q. Why do you say this is the handwriting of your aunt?
A. I presented it to the fiscal.
A. Because I am familiar with her signature.[16]
Q. For what purpose?
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.
A. Just to seek advice.
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:
A. About the will.[18]
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?
Q. Advice of what?
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. I.
A. Yes, sir.
Q. Since when did you have the possession of the will?
A. It was in my mothers possession.
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?
Q. So, it was not in your possession?
A. Yes, sir.[19]
A. Sorry, yes.
xxx
Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there
are retracings in the word Vda.?
A. 1985.[17]
A. Yes, a little. The letter L is continuous.
xxx
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
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.[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 the market and then to her
transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.
Q. What was your purpose of going to her lawyer?
A. Yes, sir the handwriting shows that she was very exhausted.
A. I used to be her personal driver.
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?
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. In writing.
A. Yes, sir.
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?
Q. How come that you acquired familiarity?
A. That was I think. (sic)
A. Because I lived with her since birth.[22]
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. x x x
And in fact , the name Eufemia R. Patigas here refers to one of the petitioners?
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.
A. Yes, sir, that is her signature.
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?
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. 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. Do you know Matilde Vda de Ramonal?
Q. Also in exhibit n-3, whose signature is this?
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.
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
xxx
Q. Can you tell the name of the husband?

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. The late husband is Justo Ramonal.[24]

xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
have legitimate children?
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
A. As far as I know they have no legitimate children.
[25]
xxx
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
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 assisted her in terminating the partition, of properties.
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what
case is that, Fiscal?
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. It is about the project partition to terminate the property, which was under the
court before.[26]
A. Well, that is similar to that signature appearing in the project of partition.
xxx
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?
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five
years before the death of the deceased.
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
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, [31] ruling that the requirement
is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals, [32] we said that the object of the
solemnities surrounding the execution of wills is to close the door against 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
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her during
her lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the holographic will and she
is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as
to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The signature of
the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, [33] and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June 16, 1978, [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 the 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.
No costs.
SO ORDERED.
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
Codoy v. Calugay
312 SCRA 333
FACTS: On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed a petition for probate of the said will. They attested to the genuineness
and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will
was a forgery and that the same is even illegible. They raised doubts as regards the
repeated appearing on the will after every disposition, calling the same out of the
ordinary. If the will was in the handwriting of the deceased, it was improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.
The first witness was the clerk of court of the probate court who produced and identified
the
records
of
the
case
bearing
the
signature
of
the
deceased.
The second witness was election registrar who was made to produce and identify the
voters affidavit, but failed to as the same was already destroyed and no longer
available.
The third, the deceaseds niece, claimed that she had acquired familiarity with the
deceaseds signature and handwriting as she used to accompany her in collecting rentals
from her various tenants of commercial buildings and the deceased always issued
receipts. The niece also testified that the deceased left a holographic will entirely written,
dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings of
her late husband, who said that the signature on the will was similar to that of the
deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar with the
signature of the deceased which appeared in the latters application for pasture permit.
The fifth, respondent Evangeline Calugay, claimed that she had lived with the deceased
since birth where she had become familiar with her signature and that the one appearing
on the will was genuine.
Codoy and Ramonals demurrer to evidence was granted by the lower court. It was
reversed on appeal with the Court of Appeals which granted the probate.
ISSUE: 1. W/N Article 811 of the Civil Code, providing that at least three witnesses
explicitly declare the signature in a contested will as the genuine signature of the
testator, is mandatory or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due execution
of the deceaseds holographic will.
HELD: 1. YES. The word shall connotes a mandatory order, 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.
In the case at bar, the goal to be achieved by the law, 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.
The paramount consideration in the present petition is to determine the true intent of the
deceased.
2. NO. We cannot be certain that the holographic will was in the handwriting of the
deceased.
The clerk of court was not presented to declare explicitly that the signature appearing in
the holographic will was that of the deceased.
The election registrar was not able to produce the voters affidavit for verification as it
was no longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased and did not
declare that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in the
possession of the said niece, who kept the fact about the will from the children of the
deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the decreased write a note or sign a
document.
The former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied with.)
A visual examination of the holographic will convinces that the strokes are different when
compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of their
opposition.
The object of 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 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, the law requires
three witnesses to declare that the will was in the handwriting of the deceased.
Article 811, paragraph 1. provides: 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 word shall connotes a mandatory order, 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.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of
Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.
AQUINO, J.:+.wph!1
The question in this case is whether a petition for allowance of wills and to
annul a partition, approved in anintestate proceeding by Branch 20 of the
Manila Court of First Instance, can be entertained by its Branch 38 (after a
probate in the Utah district court).
Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in
the Makati Medical Center on November 27, 1977. He was survived by his
second wife, Maxine Tate Grimm and their two children, named Edward Miller
Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and Ethel Grimm
Roberts (McFadden), his two children by a first marriage which ended in divorce
(Sub-Annexes A and B. pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One will
disposed of his Philippine estate which he described as conjugal property of
himself and his second wife. The second win disposed of his estate outside the
Philippines.
In both wills, the second wife and two children were favored. The two children of
the first marriage were given their legitimes in the will disposing of the estate
situated in this country. In the will dealing with his property outside this country,
the testator said: t.hqw
I purposely have made no provision in this will for my daughter,
Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden
(Ethel Grimm Roberts), because I have provided for each of them
in a separate will disposing of my Philippine property. (First
clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm
and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial
District Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino,
California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon
City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition filed in Manila
by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the
Third Judicial District Court admitted to probate the two wills and the codicil It
was issued upon consideration of the stipulation dated April 4, 1978 "by and
between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller
Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris
and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and
Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother
Juanita Kegley Grimm as the second parties, with knowledge of the intestate
proceeding in Manila, entered into a compromise agreement in Utah regarding
the estate. It was signed by David E. Salisbury and Donald B. Holbrook, as
lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and
by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be
designated as personal representatives (administrators) of Grimm's Philippine
estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in
the estate should be reserved for her and that would not be less than
$1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The
agreement indicated the computation of the "net distributable estate". It
recognized that the estate was liable to pay the fees of the Angara law firm (par.
5).
It was stipulated in paragraph 6 that the decedent's four children "shall share
equally in the Net Distributable Estate" and that Ethel and Juanita Morris should
each receive at least 12-1/2% of the total of the net distributable estate and
marital share. A supplemental memorandum also dated April 25, 1978 was
executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate
case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that fortythree days after Grimm's death, or January 9, 1978, his daughter of the first
marriage, Ethel, 49, through lawyers Deogracias T. Reyes and. Gerardo B.
Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate
proceeding No. 113024for the settlement of his estate. She was named special
administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed
an opposition and motion to dismiss the intestate proceeding on the ground of
the pendency of Utah of a proceeding for the probate of Grimm's will. She also
moved that she be appointed special administratrix, She submitted to the court
a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58
to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine,
through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p.
78, testate case withdrew that opposition and motion to dismiss and, at the
behest of Maxine, Ethel and Pete, appointed them joint administrators.
Apparently, this was done pursuant to the aforementioned Utah compromise
agreement. The court ignored the will already found in the record.
The three administrators submitted an inventory. With the authority and
approval of the court, they sold for P75,000 on March 21, 1979 the so-called
Palawan Pearl Project, a business owned by the deceased. Linda and Juanita
allegedly conformed with the sale (pp. 120-129, Record). It turned out that the
buyer, Makiling Management Co., Inc., was incorporated by Ethel and her
husband, Rex Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they sold
for P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation
(p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed by
lawyers Limqueco and Macaraeg (not signed by Maxine and her two children),
Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine
onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to
his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made
of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced Limqueco
with Octavio del Callar as their lawyer who on August 9, moved to defer
approval of the project of partition. The court considered the motion moot
considering that it had already approved the declaration of heirs and project of
partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he
was no longer connected with Makiling Management Co., Inc. when the Palawan
Pearl Project was sold: that it was Maxine's son Pete who negotiated the sale
with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies
she imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of
Internal Revenue dated October 2, 1979. It was stated therein that Maxine paid
P1,992,233.69 as estate tax and penalties and that he interposed no objection
to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted
the certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no
movement or activity in the intestate case. On April 18, 1980 Juanita Grimm
Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate
properties can be partitioned among the heirs and the present intestate estate
be closed." Del Callar, Maxine's lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm
filed again its appearance in collaboration with Del Callar as counsel for Maxine
and her two children, Linda and Pete. It should be recalled that the firm had
previously appeared in the case as Maxine's counsel on March 11, 1978, when it
filed a motion to dismiss the intestate proceeding and furnished the court with a
copy of Grimm's will. As already noted, the firm was then superseded by lawyer
Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September
8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and
Linda, filed in Branch 38 of the lower court a petition praying for the probate of
Grimm's two wills (already probated in Utah), that the 1979 partition approved
by the intestate court be set aside and the letters of administration revoked,
that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered
to account for the properties received by them and to return the same to
Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the
machinations of the Roberts spouses, that the 1978 Utah compromise
agreement was illegal, that the intestate proceeding is void because Grimm
died testate and that the partition was contrary to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of
merit in his order of October 27, 1980. Ethel then filed a petition for certiorari
and prohibition in this Court, praying that the testate proceeding be dismissed,
or. alternatively that the two proceedings be consolidated and heard in Branch
20 and that the matter of the annulment of the Utah compromise agreement be
heard prior to the petition for probate (pp. 22-23, Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse of
discretion, amounting to lack of jurisdiction, in denying Ethel's motion to
dismiss.
A testate proceeding is proper in this case because Grimm died with two wills
and "no will shall pass either real or personal property unless it is proved and
allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98
Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous
that the estate of a person who died testate should be settled in an intestate
proceeding. Therefore, the intestate case should be consolidated with the
testate proceeding and the judge assigned to the testate proceeding should
continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an
opposition and answer to the petition unless she considers her motion to
dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who
appeared in the intestate case, should be served with copies of orders, notices
and other papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is
dissolved. No costs.
SO ORDERED.1wph1.t
Makasiar (Chairman), Guerrero and De Castro, JJ., concur.
Escolin, J., concur in the result.
Concepcion, Jr. and Abad Santos, JJ., took no part.
Roberts v. Leonidas
129 SCRA 33
FACTS:
Grimm, an American resident of Manila, died in 1977. He was survived by his
second wife (Maxine), their two children (Pete and Linda), and by his two
children by a first marriage (Juanita and Ethel) which ended by divorce.
Grimm executed two wills in San Francisco, California on January 23, 1959. One
will disposed of his Philippine estate described as conjugalproperty of himself
and his second wife. The second will disposed of his estate outside the
Philippines. The two wills and a codicil were presented for probate in Utah by
Maxine on March 1978. Maxine admitted that she received notice of the
intestate petition filed in Manila by Ethel in January 1978. The Utah Court
admitted the two wills and codicil to probate on April 1978 and was issued upon
consideration of the stipulation between the attorneys for Maxine and Ethel.
Also in April 1978, Maxine and Ethel, with knowledge of the intestate
proceeding in Manila, entered into a compromise agreement in Utah regarding
the estate.
We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethels motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills
and no will shall pass either real or personal property unless it is proved and
allowed (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory. It is anomalous that the estate of a person
who died testate should be settled in an intestate proceeding. Therefore, the
intestate case should be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the two cases.
As mentioned, in January 1978, an intestate proceeding was instituted by Ethel.

On March 1978, Maxine filed an opposition and motion to dismiss the intestate
proceeding on the ground of pendency of the Utah probate proceedings. She
submitted to the court a copy of Grimms will. However, pursuant to the
compromise agreement, Maxine withdrew the opposition and the motion to
dismiss. The court ignored the will found in the record.The estate was
partitioned.
In 1980, Maxine filed a petition praying for the probate of the two wills (already
probated in Utah), that the partition approved by the intestate court be set
aside and the letters of administration revoked, that Maxine be appointed
executrix and Ethel be ordered to account for the properties received by them
and return the same to Maxine. Maxine alleged that they were defrauded due to
the machinations of Ethel, that the compromise agreement was illegal and the
intestate proceeding was void because Grimm died testate so partition was
contrary to the decedents wills.
Ethel filed a motion to dismiss
JudgeLeonidas for lack of merit.
the
petition
which
was
denied
FIRST DIVISION
by
ISSUE:
Whether the judge committed grave abuse of discretion amounting to lack of
jurisdiction in denying Ethels motion to dismiss.
HELD:

SUPREME COURT
Manila
G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO,respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by
the resolution dated August 10, 1982, declaring as null and void the devise in favor of
the petitioner and the resolution dated December 28, 1982 denying petitioner's motion
for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly
signed by him at the end of the Will on page three and on the left margin of pages 1, 2
and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other
and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate. It is clearly stated in the Will that the testator
was legally married to a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded
wife and had been living with petitioner as husband and wife. In fact, on December 5,
1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his
forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita
his entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged from my
above-named wife for so many years, I cannot deny that I was legally
married to her or that we have been separated up to the present for
reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love
and affection, for all the things which she has done for me, now and in
the past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator,

opposition alleging inter alia that the execution
improper influence on the part of the petitioner;
Will, the testator was already very sick and that
concubinage with the testator, she is wanting in
should not be issued to her.
Rufina Gomez and her children filed an

of the Will was procured by undue and
that at the time of the execution of the
petitioner having admitted her living in
integrity and thus, letters testamentary
On January 6, 1976, the lower court denied the probate of the Will on the ground that as
the testator admitted in his Will to cohabiting with the petitioner from December 1952
until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise
because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the Will
to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is
declared null and void. The properties so devised are instead passed on
in intestacy to the appellant in equal shares, without pronouncement as
to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of the
dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court on
August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by
the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in
excess of its jurisdiction when after declaring the last Will and Testament of the deceased
Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot
be passed upon and decided in the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner further contends
that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of
obtaining a declaration of the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament
itself expressly admits indubitably on its face the meretricious relationship between the
testator and the petitioner and the fact that petitioner herself initiated the presentation
of evidence on her alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence, merits the application of the doctrine
enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon.
Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that
the admission of the testator of the illicit relationship between him and the petitioner put
in issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the
devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution
and witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of
the provisions of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document
and the testamentary capacity of the testator; the second relates to
descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain
legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil.
426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been
filed with the petitioner's authorization) the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity
had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical

considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue (Nuguid
v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan
L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent court when in resolving
the question of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex
A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in the
event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case,
et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to
the proper court in a separate action for that purpose simply because, in the probate of a
will, the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:

(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before
the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez
was his legal wife from whom he had been estranged "for so many years." He also
declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In
Article IV, he stated that he had been living as man and wife with the petitioner since
1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He
stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was
then 51 years old while the woman was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner,
the devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start
of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed
upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith
in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982,
pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner. (TSN
of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased

testator in a town in Tarlac where neither she nor the testator ever
resided. If there was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the deceased with private
respondent Rufina Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family way at that
time and it would seem that the parents of Martin Jugo were not in favor
of the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN of August
18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when
they were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of
about 30 years in between. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her
to ask her groom before she married him in secrecy, especially so when
she was already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by
itself conclusive demonstration that she new that the man she had
openly lived for 22 years as man and wife was a married man with
already two children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They
are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she
was going to marry whether or not he was already married to another,
knowing that her groom had children. It would be a story that would
strain human credulity to the limit if petitioner did not know that Martin
Jugo was already a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that led petitioner to
break off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.
only since in the probate of a will, the court does not ordinarily look into the intrinsic
validity of its provisions.
The devisee is invalid by virtue of Art. 739 which voids a donation made between
persons guilty of adultery/concubinage at the time of the donations. Under Art, 1028 it is
also prohibited.
SUPREME COURT
Manila
EN BANC
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ.,
concur.
G.R. No. L-23445
REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
Nepomuceno v. Court of Appeals

Facts:
1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia Nepomuceno
as the sole and only executor. It was also provided therein that he was married to Rufina
Gomez with whom he had 3 children.
2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her children
opposed alleging that the will was procured through improper and undue influence and
that there was an admission of concubinage with the petitioner.
3. The lower court denied the probate on the ground of the testator's admission of
cohabitation, hence making the will invalid on its face. The Court of Appeals reversed
and held that the will is valid except the devise in favor of the petitioner which is null and
void in violation of Art. 739 and 1028.
Issue: Whether or not the court can pass on the intrinsic validity of a will
RULING: Yes, as an exception. But the general rule is that the court's area of inquiry is
limited to the an examination and resolution of the extrinsic validity of the will. This
general rule is however not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and may pass
upon certain provisions of the will. The will itself admitted on its face the relationship
between the testator and the petitioner.
The will was validly executed in accordance with law but the court didn't find it to serve a
practical purpose to remand the nullified provision in a separate action for that purpose
June 23, 1966
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal
a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of
her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios
Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the
deceased in the direct ascending line were illegally preterited and that in consequence
the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to

dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day
of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that
the will has been duly authenticated. 2 But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists that
the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet headon the issue of the validity of the provisions of the will in question. 3 After all, there exists
a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion
below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.
Reproduced hereunder is the will:
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the death of
the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole
como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte
alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno
cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el
heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
Nov. 17, 1951

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions
of divorce decree upon wife's remarriage means to reduce to nothing; to
annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish.
N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614,
136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly,
they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here institutes
petitioner as the sole, universal heir nothing more. No specific legacies or bequests
are therein provided for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade
limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto
prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion se anula, porque
asi lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal
heir without any other testamentary disposition in the will amounts to a declaration
that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule
of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el
acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a
los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro
del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no
porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted a
share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la
institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that

disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". 19 Express as disinheritance should be, the same must be supported by
a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
special provision. With reference to article 814, which is the only provision material
to the disposition of this case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from legacies or betterments. And
they are separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is undetermined. Legacy refers
to specific property bequeathed by a particular or special title. ... But again an
institution of heirs cannot be taken as a legacy. 25
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
FACTS: Rosario Nuguid , single, died in December 30, 1962.She was without descendants
but was survived by her parents and siblings. On May 18, 1963, Remedios Nuguid, her
sister filed in CFI a holographic will allegedly executed by Rosario on November 17, 1951
or 11 years ago, said will instituted Remedios as the universal heir thereby, compulsory
heirs, the ascendants of the decedent, filed their opposition to the probate proceeding.
They contend that they were illegally preterited and as a consequence, the institution is
void. The courts order held that the will in question is a complete nullity.
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817.
Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.
NUGUID VS NUGUID
GRN L-2344 17 SCRA 449 JUNE 23, 1966
ISSUE:
Whether or not the compulsory heirs were preterited , thereby rendering the holographic
will void. Whether the court may rule on the intrinsic validity of the will.
RULING: The statute we are called upon to apply in article 854 of the civil code which
states:
The preterition or omission of one, some or all of the compulsory heirs in the direct
time, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the d and legacies shall be valid insofar as
they are not inofficious
The forced heirs, parents of the deceased, were received nothing by the testament. The
one-sentence will institutes petitioner as the universal heir. No specific legacies or
bequest are therein provided for. It is in this posture that we say that the nullity is
complete.
Preterition consists in the omission in the testators will of the forced heirs or anyone of
them, either because they are not mentioned therein or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited as heirs nor are expressly
disinherited. Disinheritance is a testamentary disposition depriving any compulsory heir
his/her share in the legitime for a cause authorized by law.
On the second issue, the case is for the probate of the will and the courts area of inquiry
is limited to the extrinsic validity of the will comes after the will has been duly
authenticated. However if the case is to be remanded for probate of the will, nothing will
be gained. The practical conditions: time, effort, expenses and added anxiety, induced us
to a belief that we might as well meat head-on the issue of the validity of the provisions
of the will in question.
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

SUPREME COURT
Manila
FIRST DIVISION
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, 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.
part.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no
Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the
trial court's factual finding that the peculiar alterations in the holographic will crossing
out Rosa's name and instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find it peculiar that the
testatrix who was obviously an educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is
properly denied, since the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the trial court's
factual finding that the testatrix had by her own handwriting substituted Gregorio for
Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that
the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.
instead "Rosario" was written above it. Such was not initialed, b) Rosa's name was
crossed out as sole executrix and Gregorio's ma,e was written above it. This alteration
was initialed by the testator.
2. Rosa contended that the will as first written should be given effect so that she would
be the sole heir. The lower court denied the probate due to the unauthenticated
alterations and additions.
Issue: Whether or not the will is valid
RULING: No, the will is voided or revoked since nothing remains in the will which could
remain valid as there was only one disposition in it. Such was altered by the substitution
of the original heir with another. To rule that the first will should be given effect is to
disregard the testatrix' change of mind. However, this change of mind cannot be given
effect either as she failed to authenticate it in accordance with Art. 814, or by affixing
her full signature.
Separate Opinions
SUPREME COURT
Manila
TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the
trial court's factual finding that the peculiar alterations in the holographic will crossing
out Rosa's name and instead inserting her brother Gregorio's name as sole heir and "sole
executrix" were made by the testatrix in her own handwriting. (I find it peculiar that the
testatrix who was obviously an educated person would unthinkingly make such crude
alterations instead of consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as
sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is
initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is
properly denied, since the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the trial court's
factual finding that the testatrix had by her own handwriting substituted Gregorio for
Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that
the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.
Kalaw v. Relova
(Ponente)
Melencio-Herrera, J.
Facts:
1. Gregorio Kalaw, the private respondent, claiming to be the sole heir of sister
Natividad, filed a peition for probate of the latter's holographic will in 1968. The will
contained 2 alterations: a) Rosa's name, designated as the sole heir was crossed out and
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas de
Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of
the holographic Win on July 21, 1973.
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas

de Jesus, is hereby disallowed for not having been executed as required by the law.
The order of August 24, 1973 is hereby set aside.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found
a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23
and 24 thereof, a letter-win addressed to her children and entirely written and signed in
the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61
" and states: "This is my win which I want to be respected although it is not written by a
lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61
" is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified her signature. They further
testified that their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted
by mistake and/or did not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the Will
should contain the day, month and year of its execution and that this should be strictly
complied with.
The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of
the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the
Civil Code which reads: ART. 810. A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688
of the Old Civil Code require the testator to state in his holographic Win the "year,
month, and day of its execution," the present Civil Code omitted the phrase Ao mes y
dia and simply requires that the holographic Will should be dated. The petitioners submit
that the liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is
void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and Section
1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code because statutes prescribing
the formalities to be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of
which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law
on wigs in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing
his last wishes, but with sufficien safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and
influence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27
SCRA 327) he emphasized that:
xxx xxx xxx ... The law has a tender regard for the will of the testator expressed
in his last will and testament on the ground that any disposition made by the
testator is better than that which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon the presumed will of
the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx ... More than anything else, the facts and circumstances of record
are to be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any suggestion
of bad faith, forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other nonessential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded
by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such contingencies as that of

two competing Wills executed on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children of
the testatrix agree on the genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the holographic Will
is fatally defective because the date "FEB./61 " appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This objection is too technical to
be entertained.
As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and
SET ASIDE and the order allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated.
SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.
FACTS:
After the death of spouses Andres and Bibiana de Jesus, a special proceeding was
instituted by Simeon, brother of Bibiana. Simeon was then appointed administrator of the
estate and consequently, he delivered to the lower court a document purporting to be
the holographic will of Bibiana which was then set for a hearing. Luz Henson, one of the
compulsory heirs filed an opposition to probate assailing the purported holographic Will
of Bibiana was not executed in accordance with law. However, the lower court issued an
order allowing the probate which was found to have been duly executed in accordance
with law. A motion for reconsideration was then filed by Luz assailing that the alleged
holographic will was not dated as required by Article 810 of the Civil Code and
contending that the law requires that the Will should contain the day, month and year of
its execution and that this should be strictly complied with. The court then reconsidered
its earlier order and disallowed the probate of the holographic will on the ground that the
word dated has generally been held to include the month, day, and year.
ISSUE:
Whether or not the date (FEB/61) appearing on the holographic will of the deceased
Bibian Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.
RULING:
ART. 810. A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be
made
in
or
out
of
the
Philippines,
and
need
not
be
witnessed.
As a general rule, the date in a holographic will should include the day, month and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date FEB/61 appearing on the
holographic will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129505
January 31, 2000
OCTAVIO S. MALOLES II, petitioner,

vs.
PACITA DE LOS REYES PHILLIPS, respondent.
----------------------------G.R. No. 133359
January 31, 2000
OCTAVIO S. MALOLES II, petitioner,

vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity
as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the
alleged executrix of the alleged will of the late Dr. Arturo de
Santos, respondents.
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right
to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were
consolidated considering that they involve the same parties and some of the issues
raised are the same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will 1 in the Regional Trial Court, Branch 61, Makati, docketed as
Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory
heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos
Foundation, Inc.; that he disposed by his will his properties with an approximate value of
not less than P2,000,000.00; and that copies of said will were in the custody of the
named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will 2 was
annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an
order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition
on 12 September 1995, at 8:30 o'clock in the morning, copies of which were
served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips
(Officer's Return, dated 04 September 1995 attached to the records). When the
case was called for hearing on the date set, no oppositor appeared nor any
written opposition was ever filed and on motion of petitioner, he was allowed to
adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness
stand and was directly examined by the Court through "free wheeling" questions
and answers to give this Court a basis to determine the state of mind of the
petitioner when he executed the subject will. After the examination, the Court is
convinced that petitioner is of sound and disposing mind and not acting on
duress, menace and undue influence or fraud, and that petitioner signed his Last
Will and Testament on his own free and voluntary will and that he was neither
forced nor influenced by any other person in signing it.
Furthermore, it appears from the petition and the evidence adduced that
petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1",
"A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets,
Forbes Park, Makati City; said Last Will and Testament was signed in the presence
of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7",
"A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-
17", & "A-18"), who in turn, in the presence of the testator and in the presence of
each and all of the witnesses signed the said Last Will and Testament and duly
notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the
actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to
"B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with
address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been
named as sole legatee and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips
was designated as executor and to serve as such without a bond.1wphi1.nt
From the foregoing facts, the Court finds that the petitioner has substantially
established the material allegations contained in his petition. The Last Will and
Testament having been executed and attested as required by law; that testator
at the time of the execution of the will was of sane mind and/or not mentally
incapable to make a Will; nor was it executed under duress or under the
influence of fear or threats; that it was in writing and executed in the language
known and understood by the testator duly subscribed thereof and attested and
subscribed by three (3) credible witnesses in the presence of the testator and of
another; that the testator and all the attesting witnesses signed the Last Will and
Testament freely and voluntarily and that the testator has intended that the
instrument should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for
the allowance of the Last Will and Testament of Arturo de Santos is hereby
APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he
was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged
that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of
the order allowing the will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was granted,
while petitioner was required to file a memorandum of authorities in support of his claim
that said court (Branch 61) still had jurisdiction to allow his intervention. 3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial
Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's
estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside
the appointment of private respondent as special administrator. He reiterated that he
was the sole and full blooded nephew and nearest of kin of the testator; that he came to
know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate
proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still
pending; that private respondent misdeclared the true worth of the testator's estate; that
private respondent was not fit to be the special administrator of the estate; and that
petitioner should be given letters of administration for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to
Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC
Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August
26, 1996 petitioner's motion for intervention. Petitioner brought this matter to the Court
of Appeals which, in a decision 4 promulgated on February 13, 1998, upheld the denial of
petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring
this case to this Branch 61 on the ground that this case is related with a case
before this Court, let this case be returned to Branch 65 with the information that
there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS
pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule
76 of the Rules of Court for the Allowance of his will during his lifetime docketed
as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and
has become final.
It is noted on records of Case No. M-4223 that after it became final, herein
Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF
LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court,
during the hearing, already ruled that the motion could not be admitted as the
subject matter involves a separate case under Rule 78 of the Rules of Court, and
movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case
No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26
August 1996 likewise for the same grounds that the matter is for a separate case
to be filed under Rule 78 of the Rules of Court and cannot be included in this
case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be
approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996, 5 Judge Abad Santos appeared firm in
his position that " . . . it would be improper for (Branch 65) to hear and resolve the
petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to
continue hearing this case notwithstanding the fact that said branch began the
probate proceedings of the estate of the deceased and must therefore continue
to exercise its jurisdiction to the exclusion of all others, until the entire estate of
the testator had been partitioned and distributed as per Order dated 23
September 1996, this branch (Regional Trial Court Branch 65) shall take
cognizance of the petition if only to expedite the proceedings, and under the
concept that the Regional Trial Court of Makati City is but one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the
Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.;
Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles,
Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention.
Private respondent moved for a reconsideration but her motion was denied by the trial
court. She then filed a petition for certiorari in the Court of Appeals which, on February
26, 1997, rendered a decision 6 setting aside the trial court's order on the ground that
petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has
lost jurisdiction to proceed with the probate proceedings upon its issuance of an
order allowing the will of Dr. Arturo de Santos.
2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65)
acquired jurisdiction over the petition for issuance of letters testamentary filed
by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos,
has a right to intervene and oppose the petition for issuance of letters
testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her
petition for issuance of letters testamentary with the Regional Trial Court
Makati, Branch 65 knowing fully well that the probate proceedings involving the
same restate estate of the decedent is still pending with the Regional Trial Court
Makati, Branch 61.
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the
cases of Santiesteban v. Santiesteban7 andTagle v. Manalo,8 he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent's petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited
to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law. 9
Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate
of the will of a living testator under the principle of ambulatory nature of wills. 10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent provisions of
the Rules of Court for the allowance of wills after the testator's death shall
govern.
The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its due execution.
Rule 76, 1 likewise provides:
Sec. 1. Who may petition for the allowance of will. Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any
time after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or
destroyed.
The testator himself may, during his lifetime, petition in the court for the
allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been
explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity
of the testator or the formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of testamentary dispositions.
It is far easier for the courts to determine the mental condition of a testator
during his lifetime than after his death. Fraud, intimidation and undue influence
are minimized. Furthermore, if a will does not comply with the requirements
prescribed by law, the same may be corrected at once. The probate during the
testator's life, therefore, will lessen the number of contest upon wills. Once a will
is probated during the lifetime of the testator, the only questions that may
remain for the courts to decide after the testator's death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of course, that even when
the testator himself asks for the allowance of the will, he may be acting under
duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not
necessarily mean that he cannot alter or revoke the same before his death.
Should he make a new will, it would also be allowable on his petition, and if he
should die before he has had a chance to present such petition, the ordinary
probate proceeding after the testator's death would be in order. 11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was
nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the ruling
of Judge Abad Santos of Branch 65 of RTC-Makati that
Branch 61 of the Regional Trial Court of Makati having begun the probate
proceedings of the estate of the deceased, it continues and shall continue to
exercise said jurisdiction to the exclusion of all others. It should be noted that
probate proceedings do not cease upon the allowance or disallowance of a will
but continues up to such time that the entire estate of the testator had been
partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant
merely that the partition and distribution of the estate was to be suspended until
the latter's death. In other words, the petitioner, instead of filing a new petition
for the issuance of letters testamentary, should have simply filed a manifestation
for the same purpose in the probate court.12
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73,
1 which states:
Where estate of deceased persons settled. If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his estate settled, in
the Court of First Instance in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the Court of First Instance
of any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion
of all other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of
the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the
location of the state," is in reality a matter of venue, as the caption of the Rule
indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It
could not have been intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of procedure dealing merely
with procedural matters. Procedure is one thing, jurisdiction over the subject
matter is another. The power or authority of the court over the subject matter
"existed was fixed before procedure in a given cause began." That power or
authority is not altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and justly exercised. There
are cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it loses
the power to exercise it legally. However, this does not amount to a loss of
jurisdiction over the subject matter. Rather, it means that the court may thereby
lose jurisdiction over the person or that the judgment may thereby be rendered
defective for lack of something essential to sustain it. The appearance of this
provision in the procedural law at once raises a strong presumption that it has
nothing to do with the jurisdiction of the court over the subject matter. In plain
words, it is just a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro
Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different
branches comprising each court in one judicial region do not possess jurisdictions
independent of and incompatible with each other.14
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for
probate of the will of Dr. De Santos is concerned, it does not bar other branches of the
same court from taking cognizance of the settlement of the estate of the testator after
his death. As held in the leading case of Bacalso v. Ramolote:15
The various branches of the Court of First Instance of Cebu under the Fourteenth
Judicial District, are a coordinate and co-equal courts, and the totality of which is
only one Court of First Instance. The jurisdiction is vested in the court, not in the
judges. And when a case is filed in one branch, jurisdiction over the case does
not attach to the branch or judge alone, to the exclusion of the other branches.
Trial may be held or proceedings continue by and before another branch or
judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to
the Secretary of Justice, the administrative right or power to apportion the cases
among the different branches, both for the convenience of the parties and for
the coordination of the work by the different branches of the same court. The
apportionment and distribution of cases does not involve a grant or limitation of
jurisdiction, the jurisdiction attaches and continues to be vested in the Court of
First Instance of the province, and the trials may be held by any branch or judge
of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc.
No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of
letters testamentary filed by private respondent. He argues that, as the nearest next of
kin and creditor of the testator, his interest in the matter is material and direct. In ruling
that petitioner has no right to intervene in the proceedings before Branch 65 of RTCMakati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the
decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the
only and nearest collateral relative of the decedent, he can inherit from the latter
only in case of intestacy. Since the decedent has left a will which has already
been probated and disposes of all his properties the private respondent can
inherit only if the said will is annulled. His interest in the decedent's estate is,
therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having been raised
for the first time only in his reply to the opposition to his motion to intervene,
and, as far as the records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the estate or
the will, and the private respondent has none. Moreover, the ground cited in the
private respondent's opposition, that the petitioner has deliberately misdeclared
the truth worth and value of the estate, is not relevant to the question of her
competency to act as executor. Section 2, Rule 76 of the Rules of Court requires
only an allegation of the probable value and character of the property of the
estate. The true value can be determined later on in the course of the settlement
of the estate.16
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for
administration. Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the persons named therein
as executors, or any of them, and the court, after hearing upon notice, shall pass
upon the sufficiency of such grounds. A petition may, at the same time, be filed
for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate, such
as a creditor, and whose interest is material and direct, not merely incidental or
contingent.17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an
"heir" of the testator. It is a fundamental rule of testamentary succession that one who
has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part
of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. 18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson:19
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one of his confidence, one who
can be trusted to carry out his wishes in the disposal of his estate. The
curtailment of this right may be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer the estate. 20 None of these
circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she
filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the two actions which
are founded on the same facts, and a judgment in either will result in res judicata in the
other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated.1wphi1.nt
On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the
testator. The estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the
latter filed during the pendency of the former. There was, consequently, no forum
shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby
AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
emedial Law Special Proceedings Intervention in Probate Proceedings
In 1995, Dr. Arturo De Los Santos filed a petition for probate of his will. He
declared that he has no compulsory heirs and that he is naming as sole devisee
and legatee the Arturo de Santos Foundation, Inc. (ASF). The named executrix is
Pacita De Los Reyes Phillips. The petition was filed in RTC Makati Branch 61.
Judge Fernando Gorospe of said court determined that Arturo is of sound mind
and was not acting in duress when he signed his last will and testament and so
Branch 61 allowed the last will and testament on February 16, 1996.
Ten days from the allowance, Arturo died. Thereafter, Pacita, as executrix, filed a
motion for the issuance of letters of testamentary with Branch 61. She however
withdrew the motion but later on refilled it with RTC Makati Branch 65.
Meanwhile, a certain Octavio Maloles II filed a motion for intervention with
Branch 61 claiming that as a next of kin (him being the full blooded nephew of
Arturo) he should be appointed as the administrator of the estate and that he is
an heir.
2. Whether or not Makati, Branch 65 acquired jurisdiction over the petition for
issuance of letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de
Santos, has a right to intervene and oppose the petition for issuance of letters
testamentary filed by the respondent.
Held:
Judge Abad Santos of Branch 65 issued an order transferring the motion filed by
Pacita to Branch 61. Judge Santos ratiocinated that since the probate
proceeding started in Branch 61, then it should be the same court which should
hear Pacitas motion. Branch 61 however refused to consolidate and referred
the case back to Branch 65. Branch 65 subsequently consolidated the case per
refusal of Branch 61. Eventually, Branch 65 allowed the motion for intervention
filed by Octavio.
ISSUE: Whether or not Octavio Maloles II has the right to intervene in the
probate proceeding.
HELD: No. The Supreme Court first clarified that the probate of will filed in
Branch 61 has already terminated upon the allowance of the will. Hence when
Pacita filed a motion with Branch 65, the same is already a separate proceeding
and not a continuance of the now concluded probate in Branch 61. There is
therefore no reason for Branch 65 to refer back the case to Branch 61 as it
initially did. Further even if the probate was terminated, under Rule 73 of the
Rules of Court concerning the venue of settlement of estates, it is provided that
when a case is filed in one branch, jurisdiction over the case does not attach to
the branch or judge alone, to the exclusion of the other branches.
Anent the issue of Octavio being an heir, such contention has no merit. He is
not an heir. Arturo died testate. Next of kins may only inherit if a person dies
intestate. In this case, Arturo left a valid will which expressly provided that ASF
is the sole legatee and devisee of his estate.
Issues:
1. Whether or not Makati, Branch 61 has lost jurisdiction to proceed with the
probate proceedings upon its issuance of an order allowing the will of Dr. Arturo
de Santos.
Branch 65 now has jurisdiction. Petitioners contention that that the proceedings
must continue until the estate is fully distributed to the lawful heirs, devisees,
and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court is
without merit.
In cases for the probate of wills, it is well-settled that the authority of the court
is limited to ascertaining the extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. This was already done in the ante-mortem probate
of Dr. De Santos will during his lifetime.
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996,
there was nothing else for Branch 61 to do except to issue a certificate of
allowance of the will pursuant to Rule 73, 12 of the Rules of Court.
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites
Rule 73, 1 which states:
Where estate of deceased persons settled. If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and his estate settled, in
the Court of First Instance in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the Court of First Instance
of any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the

exclusion of all other courts
Lastly, regarding petitioners claim as heir and creditor the Court said that
The above rule, however, actually provides for the venue of actions for the
settlement of the estate of deceased persons. It could not have been intended
to define the jurisdiction over the subject matter, because such legal provision
is contained in a law of procedure dealing merely with procedural matters.
Procedure is one thing, jurisdiction over the subject matter is another.
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00
(in Metro Manila) belongs to the regional trial courts. The different branches
comprising each court in one judicial region do not possess jurisdictions
independent of and incompatible with each other.
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the
petition for probate of the will of Dr. De Santos is concerned, it does not bar
other branches of the same court from taking cognizance of the settlement of
the estate of the testator after his death.
The private respondent herein is not an heir or legatee under the will of the
decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the
only and nearest collateral relative of the decedent, he can inherit from the
latter only in case of intestacy. Since the decedent has left a will which has
already been probated and disposes of all his properties the private respondent
can inherit only if the said will is annulled. His interest in the decedent's estate
is, therefore, not direct or immediate. His claim to being a creditor of the estate
is a belated one, having been raised for the first time only in his reply to the
opposition to his motion to intervene, and, as far as the records show, not
supported by evidence.
Thus, the Petition was denied.

Holographic Wills Cases

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Part B.

Wills Cessy Ciar - Page 1 of 56

Republic of the Philippines

Part B. Wills Cessy Ciar - Page 2 of 56

Significantly, the appellate court while finding as inconclusive the matter on

Art. 830. No will shall be revoked except in the following cases:

The respondent appellate court in assessing the evidence presented by the

Part B. Wills Cessy Ciar - Page 3 of 56

Paula Conde v. Roman Abaya(G.R. No. 4275; March 23, 1909)

Part B. Wills Cessy Ciar - Page 4 of 56

may bring an action for theacknowledgment of the natural filiation in favor of

Republic of the Philippines

September 21, 1951

Part B. Wills Cessy Ciar - Page 5 of 56

Part B. Wills Cessy Ciar - Page 6 of 56

Part B. Wills Cessy Ciar - Page 7 of 56

Part B. Wills Cessy Ciar - Page 8 of 56

Molo vs. Molo

Part B. Wills Cessy Ciar - Page 9 of 56

Luciano A. Joson for petitioner-appellant.

Republic of the Philippines

Part B. Wills Cessy Ciar - Page 10 of 56

On November 13, 1978, following the consolidation of the cases,

Appellant's motion for reconsideration was denied. Hence, an appeal to the

(2) Lost or destroyed holographic wills cannot be proved by

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

Upon opposition of the appellant, the motion to dismiss was

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT

The appellees then filed a motion for reconsideration on the

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

Part B. Wills Cessy Ciar - Page 11 of 56

authenticity of the handwriting of the deceased can be determined by the

Republic of the Philippines

G.R. No. L-14003

FEDERICO AZAOLA, petitioner-appellant,

Issue: Whether or not a holographic will can be proved by means of a photocopy

F. Lavides and L.B. Alcuaz for appellant.

Part B. Wills Cessy Ciar - Page 12 of 56

Part B. Wills Cessy Ciar - Page 13 of 56

Azaola v. Singson (1960) [110]

Part B. Wills Cessy Ciar - Page 14 of 56

Republic of the Philippines

G.R. No. L-24742 October 26, 1973

Part B. Wills Cessy Ciar - Page 15 of 56

Part B. Wills Cessy Ciar - Page 16 of 56

perpetually from proceeding and taking any action in Special Proceeding

Part B. Wills Cessy Ciar - Page 17 of 56

Section 1. Where estate of deceased persons settled. If the decedent is

another. (Attorney-General vs. Manila Railroad Company, 20 Phil. 523.)

Part B. Wills Cessy Ciar - Page 18 of 56

intestate proceedings pending before a court of first instance it is found

Part B. Wills Cessy Ciar - Page 19 of 56

Part B. Wills Cessy Ciar - Page 20 of 56

effect in the administration of justice" of considering the question of residence as

Part B. Wills Cessy Ciar - Page 21 of 56

ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and

Senator Mariano Jesus Cuenco died in Manila. He was survived by

Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.

BARREDO, J., concurring:

I concur in the main opinion of Mr. Justice Teehankee.

Lourdes filed an opposition and motion to dismiss in CFI Quezon,

Separate Opinions BARREDO, J., concurring:

G.R. No. L-24742, October 26, 1973

The court first taking cognizance of the settlement of the