FIRST DIVISION On August 24, 1973, respondent Judge Jose C.
Colayco issued an order allowing the probate of
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.chanrobles virtual law library
Rafael Dinglasan, Jr. for heir M. Roxas.chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
The antecedent facts which led to the filing of this petition are
undisputed.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.
...chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
the holographic Will which he found to have been duly executed in accordance with
law.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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:
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.
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
We agree with the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
This objective is in accord with the modem tendency with respect to the formalities in the Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical
execution of wills. (Report of the Code Commission, p. 103) to be entertained.chanroblesvirtualawlibrary chanrobles virtual law library

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327)
he emphasized that:
xxx xxx xxxchanrobles virtual law library
... 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,
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.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

xxx xxx xxxchanrobles virtual law library

... 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 non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by
such requisite is actually attained by the form followed by the
testator.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.
SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his
heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has
been extinguished or revoked by implication of law, alleging therein that on September 30, 1971,
that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator
Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of
oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had
been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel
of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for
the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado
allegedly had already acquired by devise from their father Melecio Labrador under a holographic
will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I,
being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered a
joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring
null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00
representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with
legal interest thereon from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988
modified said joint decision of the court a quo by denying the allowance of the probate of the will
for being undated and reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of
June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT
DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE
REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as
follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and shared or the partition
in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less one
hectare, and the boundary at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is,
and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise
is also their brother. That because it is now the time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the fishponds which were and had been bought
or acquired by us, meaning with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said portion and assignment so
that there shall not be any cause of troubles or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in
the year 1968, and this decision and or instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should be followed
and complied with in order that any differences or troubles may be forestalled and nothing will
happen along these troubles among my children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all
others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in
order that there shall be nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is located, the same
being the fruits of our earnings of the two mothers of my children, there shall be equal portion of
each share among themselves, and or to be benefitted with all those property, which property we
have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof
manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied with, by all the brothers and
sisters, the children of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y
RALUTIN (p. 46, Rollo)
property belonging to another and which they had no authority to sell, rendering such sale null
and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain
possession of the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

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

The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1wphi1 It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in
the year 1968, and this decision and or instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied)
(p. 46, Rollo)

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

Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning
the respective assignments of the said fishpond," and was not the date of execution of the
holographic will; hence, the will is more of an "agreement" between the testator and the
beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was
thus a failure to comply with Article 783 which defines a will as "an act whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death."

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

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its
resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the handwriting
and signature therein (exhibit S) 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 petition3 for probate of the holographic will
of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of
sound and disposing mind when she executed the will on August 30, 1978, that there was no
fraud, undue influence, and duress employed in the person of the testator, and will was written
voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the
petition for probate, alleging that the holographic will was a forgery and that the same is even
illegible. This gives an impression that a "third hand" of an interested party other than the "true
hand" of Matilde Seo Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition
is out of the ordinary. If the deceased was the one who executed the will, and was not forced,
the dates and the signature should appear at the bottom after the dispositions, as regularly done
and not after every disposition. And assuming that the holographic will is in the handwriting of
the deceased, it was procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead
of presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to
establish sufficient factual and legal basis for the probate of the holographic will of the deceased
Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well
taken, same is granted, and the petition for probate of the document (Exhibit "S") on the
purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the
respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto
Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo
Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their
testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
proceedings for the probate of the holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the signature of the deceased,
Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by the party against
whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify
the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same
was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt,
and that after the death of Matilde's husband, the latter lived with her in her parent's house for
eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the
deceased, she acquired familiarity with her signature and handwriting as she used to accompany
her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of
commercial buildings, and deceased always issued receipts. In addition to this, she (witness
Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and
the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was
a practicing lawyer, and handled all the pleadings and documents signed by the deceased in
connection with the proceedings of her late husband, as a result of which he is familiar with the
handwriting of the latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
Environment and Natural Resources, Region 10. She testified that she processed the application
of the deceased for pasture permit and was familiar with the signature of the deceased, since the Gene and Manuel:
signed documents in her presence, when the latter was applying for pasture permit.
Follow my instruction in order that I will rest peacefully.
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 Mama
familiar with the signature of the deceased. She testified that the signature appearing in the
Matilde Vda de Ramonal
holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was
The holographic will which was written in Visayan, is translated in English as follows:
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
Instruction Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

August 30, 1978 . . . 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
1. My share at Cogon, Raminal Street, for Evangeline Calugay. 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
(Sgd) Matilde Vda de Ramonal 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
August 30, 1978
proponent. For it is not merely a question of finding and producing any three witnesses; they
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street. 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
(Sgd) Matilde Vda de Ramonal handwriting of the testator." There may be no available witness acquainted with the testator's
hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance
August 30, 1978 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
3. My jewelry's shall be divided among:
in the absence of any competent witness referred to in the preceding paragraph, and if the court
1. Eufemia Patigas
deems it necessary, expert testimony may be resorted to.
2. Josefina Salcedo
As can be see, the law foresees, the possibility that no qualified witness ma be found (or what
3. Evangeline Calugay 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.
(Sgd) Matilde Vda de Ramonal
It may be true that the rule of this article (requiring that three witnesses be presented if the will
August 30, 1978 is contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay 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
(Sgd) Matilde Vda de Ramonal 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
August 30, 1978
merely permissive if absurd results are to be avoided.
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay,
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem
Helen must continue with the Sta. Cruz, once I am no longer around.
it necessary", which reveal that what the law deems essential is that the court should be convinced
(Sgd) Matilde Vda de Ramonal of the will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it unnecessary to call for
August 30, 1978 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
6. Bury me where my husband Justo is ever buried. 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.
(Sgd) Matilde Vda de Ramonal
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested,
August 30, 1978
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 Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
the production of three witnesses is merely permissive. What the law deems essential is that the signature of the deceased in the voter's affidavit, which was not even produced as it was no
court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, longer available.
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 Matilde Ramonal Binanay, on the other hand, testified that:
needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence,
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other Matilde Vda de Ramonal keep herself busy that time?
witnesses definitely and in no uncertain terms testified that the handwriting and signature in the
A. Collecting rentals.
holographic will were those of the testator herself.
Q. From where?
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 A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12
handwriting and signature therein, and allowed the will to probate.
xxx xxx xxx
Hence, this petition.
Q. Who sometime accompany her?
The petitioners raise the following issues:
A. I sometimes accompany her.
(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. Q. In collecting rentals does she issue receipts?

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able A. Yes, sir.13
to present credible evidence to that the date, text, and signature on the holographic will written
entirely in the hand of the testatrix. xxx xxx xxx

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as
will of Matilde Seo Vda. de Ramonal. one of the receipts which she issued to them?

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are A. Yes, sir.
permissive or mandatory. The article provides, as a requirement for the probate of a contested
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
Binanay?
genuine signature of the testator.
A. Matilde vda. De Ramonal.
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 Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
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 A. I am familiar with her signature.

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept
prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and records of the accounts of her tenants?
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. A. Yes, sir.

So, we believe that the paramount consideration in the present petition is to determine the true Q. Why do you say so?
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator. A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

It will be noted that not all the witnesses presented by the respondents testified explicitly that Q. How is this record of accounts made? How is this reflected?
they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court,
A. In handwritten.14
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 xxx xxx xxx
in the holographic was that of the deceased.
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale A. Sorry, yes.
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
Ramonal? Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
A. Posting records.
A. 1985.17
Q. Aside from that?
xxx xxx xxx
A. Carrying letters.
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you
Q. Letters of whom? and therefore you have that in your possession?

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

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

A. To her creditors.15 A. I presented it to the fiscal.

xxx xxx xxx Q. For what purpose?

Q. You testified that at time of her death she left a will. I am showing to you a document with A. Just to seek advice.
its title "tugon" is this the document you are referring to?
Q. Advice of what?
A. Yes, sir.
A. About the will.18
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is
this? 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
A. My Aunt. keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda.
de Ramonal.
Q. Why do you say this is the handwriting of your aunt?
In the testimony of Ms. Binanay, the following were established:
A. Because I am familiar with her signature.16
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
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 A. Yes, sir.
or write a note.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will her building to collect rentals, is that correct?
was not found in the personal belongings of the deceased but was in the possession of Ms.
Binanay. She testified that: A. Yes, sir.19

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno xxx xxx xxx
vda de Ramonal left a will you said, yes?
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
A. Yes, sir. retracings in the word Vda.?

Q. Who was in possession of that will? A. Yes, a little. The letter L is continuous.

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

Q. Since when did you have the possession of the will? A. Yes, sir.

A. It was in my mother's possession. Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
Q. So, it was not in your possession?
A. Yes, sir.
Q. And there is a retracing in the word Vda.? A. Yes, sir.

A. Yes, sir.20 Q. How come that you acquired familiarity?

xxx xxx xxx A. Because I lived with her since birth.22

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you xxx xxx xxx
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 Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978
beautifully written and legible? there is a signature here below item No. 1, will you tell this court whose signature is this?

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

Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly Q. Why do you say that is her signature?
and she was agile. Now, you said she was exhausted?
A. I am familiar with her signature.23
A. In writing.
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of
Q. How did you know that she was exhausted when you were not present and you just tried to the deceased was because she lived with her since birth. She never declared that she saw the
explain yourself out because of the apparent inconsistencies? deceased write a note or sign a document.

A. That was I think. (sic). The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Now, you already observed this signature dated 1978, the same year as the alleged Q. Do you know Matilde Vda de Ramonal?
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I
the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas
am related to the husband by consanguinity.
here refers to one of the petitioners?
Q. Can you tell the name of the husband?
A. Yes, sir.
A. The late husband is Justo Ramonal.24
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 xxx xxx xxx
will notice the hesitancy and tremors, do you notice that?
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
A. Yes, sir.21 legitimate children?
Evangeline Calugay declared that the holographic will was written, dated and signed in the A. As far as I know they have no legitimate children.25
handwriting of the testator. She testified that:
xxx xxx xxx
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 Q. You said after becoming a lawyer you practice your profession? Where?
Ramonal?
A. Here in Cagayan de Oro City.
A. During my stay I used to go with her to the church, to market and then to her transactions.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
Q. What else? What services that you rendered?
A. I assisted her in terminating the partition, of properties.
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
Q. What was your purpose of going to her lawyer? that, Fiscal?

A. I used to be her personal driver. A. It is about the project partition to terminate the property, which was under the court
before.26
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of
Matilde Vda de Ramonal? xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as
exhibit N of the estate of Justo Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
other assistance wherein you were rendering professional service to the deceased Matilde Vda
de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to
show that I have assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document,
Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the project
of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding
the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills
and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. But on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay,
she revealed that the will was in her possession as early as 1985, or five years before the death
of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the 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, 1978,35the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that ruling holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded
to the court of origin with instructions to allow petitioners to adduce evidence in support of their
opposition to the probate of the holographic will of the deceased Matilde Seo vda. de Ramonal.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.
 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, v. AMPARO ARANZA, ET AL., D E C I S I O N RELOVA, J.:
oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant
Luciano A. Joson for Petitioner-Appellant.
to Section 3, Rule 50 of the Rules of Court.
Cesar C. Paralejo for Oppositor-Appellee.
As found by the Court of Appeals:
SYNOPSIS
The probate court ordered the dismissal of appellants petition for the allowance of the holographic
". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for
will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will
the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary
which was presented for probate, cannot stand in lieu of the lost original, for the law regards the
in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees
document itself as the material proof of the authenticity of the said will, citing the case of Gan v.
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on
Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which was lost
the following grounds:jgc:chanrobles.com.ph
or cannot be found can be proved by means of a photostatic copy.
"(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the
The Supreme Court, in setting aside the lower courts order of dismissal, held that a photostatic
will within twenty days of the death of the testator as required by Rule 75, section 2 of the
or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of
Rules of Court:jgc:chanrobles.com.ph
the handwriting of the deceased can he determined by the probate court, as comparison can be
made with the standard writings of the testator.
"(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;
Assailed order of dismissal, set aside.

SYLLABUS "(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will "(4) The deceased did not leave any will, holographic or otherwise, executed and attested as
by the Court after its due execution has been proved. required by law.

2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills
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.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED
AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or
destroyed and no other copy is available, the will cannot 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.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT
BAR. 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 Gan v. 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.
"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:jgc:chanrobles.com.ph
"(1) The alleged holographic was not a last will but merely an instruction as to the management
and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary
wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of
February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February
23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court
said:
. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gan v. 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 SO ORDERED.
material proof of authenticity of said wills.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
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.

Appellants motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellants petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the
appeal does not involve question of fact and alleged that the trial court committed the following
assigned errors:jgc:chanrobles.com.ph

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

"II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE
HIS DEATH THE MISSING HOLOGRAPHIC WILL;

"III. THE LOWER COURT ERRED IN DISMISSING APPELLANTS WILL."

The only question here is whether a holographic will which was lost or can not 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 Gan v. 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 appellants 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.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which
reads;
PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is
hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero,
private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand,
Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing
mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor
the signature therein was in decedent's handwriting; it contained alterations and corrections which
were not duly signed by decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested
the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to
probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of identity of
the will, its due execution and the testamentary capacity of the testatrix, this probate court finds
no reason at all for the disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from the will
actually executed by the testatrix. The only objections raised by the oppositors . . . are that the
will was not written in the handwriting of the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will. No other will was alleged to have been
executed by the testatrix other than the will herein presented. Hence, in the light of the evidence
adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted
in Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix
have been presented and have explicitly and categorically identified the handwriting with which
the holographic will in question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will
be entirely written, dated and signed in the handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private respondent) Clemente
Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will
in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix,
at the time of making the will, knew the value of the estate to be disposed of, the proper object of
her bounty, and the characterof the testamentary act . . . The will itself shows that the testatrix
even had detailed knowledge of the nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The objects of her bounty were likewise
identified explicitly. And considering that she had even written a nursing book which contained
the law and jurisprudence on will and succession, there is more than sufficient showing that she
knows the character of the testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary capacity
of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the
time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority, which has been testified
to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue influence or improper pressure in
question herein only refer to the making of a will and not as to the specific testamentary provisions
therein which is the proper subject of another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in case of
doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to probate. 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was
dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements
for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed
but not dated. It also found that the erasures, alterations and cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following
cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary
or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed
in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814
of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will.
This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will. So when
an interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement
that they be totally autographic or handwritten by the testator himself, 7 as provided under Article
810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will
that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of
the dispositions contained in the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such
failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with
the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated
as a whole, but at most only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date
of the holographic will or on testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating
of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for
the necessary conditions for the validity of the holographic will (Article 810). The distinction can
be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions
covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the
requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its
execution, written in its entirety by the testator and signed by him, and must contain a statement
of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them
over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code
are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house
and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be
affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity
of the will sought to be probated. However, in exceptional instances, courts are not powerless to
do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the
case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly held by respondent court,
she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to
the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.
 FIRST DIVISION
[G.R. No. L-40207. September 28, 1984.]
ROSA K. KALAW, Petitioner, v. 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 Private Respondents.
SYLLABUS
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS THEREIN NOT
AUTHENTICATED BY FULL SIGNATURE OF TESTATRIX; CASE AT BAR. Ordinarily, when a
number of erasures, corrections, and interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but
at most only as respects the particular words erased, corrected or interlined. (Velasco v. Lopez,
1 Phil. 720, 725 [1903], citing a Decision of the Supreme Court of Spain of April 4, 1895)
Manresa gave an identical commentary when he said "la omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."
(Comentarios al Codigo Civil Espaol, Quinta edicion, Tomo 5, Lib. III Tit. III Cap. I Art. I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a resident of Lipa City, being of
688, pag. 483) 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.
TEEHANKEE, J., concurring:
CIVIL LAW; WILLS; PROBATE OF ALTERED WILL PROPERLY DENIED SINCE IT WAS NOT DULY
AUTHENTICATED BY FULL SIGNATURE OF EXECUTRIX; CASE AT BAR. I concur. Rosa. having
appealed to this Court on a sole question of law, is bound by the trial courts factual finding that
the peculiar alterations in the holographic will crossing out Rosas name and instead inserting
her brother Gregorios 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 will 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 initiated).
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 mandatory
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 courts 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 kin succeed to her intestate estate.
DECISION
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
sound and disposing mind and memory, do hereby declare thus to be my last will and
testament.
1. It is my will that I be buried in the cemetery of the catholic church of Lipa City. In accordance
with the rites of said Church, and that my executrix hereinafter named provide and erect at the
expense of my state a suitable monument to perpetuate my memory.
2. I give, device and bequeath all my property real and personal to my beloved brother Gregorio
K. Kalaw to have and to hold the same as his property absolutely and unconditionally.
3. I hereby appoint my said brother Gregorio K. Kalaw as sole executive of this my last will and
testament, and it is my will that said executrix be exempted from filing a bond.
In witness where of I have hereunto set my hand this 24th day of Dec., 1968.
Natividad K. Kalaw
Testatrix
Witnesses:
Lydia S. Recio
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:jgc:chanrobles.com.ph
"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."
ROSAs 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, 1973, reading in
part:jgc:chanrobles.com.ph
"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 will,
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 made by 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 the original 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 have not been noted under his signature, . . . the Will is not thereby invalidated
as a whole, but at most only as respects the particular words erased, corrected or interlined. 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 firma, 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 determina las condiciones necesarias para la validez del testamento olografo, ya porque, de
admitir lo contrario, se llegaria al absurdo de que pequeas 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 armoniay
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, pero 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, sean de palabras que no afecten,
alteren ni varien de modo substancial la expresa 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.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of
First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination 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.
 THIRD DIVISION
[G.R. NO. 175720 : September 11, 2007]
CRESENCIANA TUBO RODRIGUEZ (now deceased), substituted by SUSANA A.
LLAGAS,Petitioner, v. EVANGELINE RODRIGUEZ, BELEN RODRIGUEZ and BUENAVENTURA
RODRIGUEZ,Respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Review on Certiorari assails the Decision1 of the Court of Appeals in CA-G.R. SP
No. 91442 dated June 27, 2006, which set aside the Decision of the Regional Trial Court (RTC) of
Makati City, Branch 134, in Civil Case No. 03-517, and reinstated the Decision of the Metropolitan
Trial Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717, dismissing the complaint for
ejectment; as well as the Resolution denying the motion for reconsideration.
Juanito Rodriguez owned a five-door apartment located at San Jose Street, Guadalupe Nuevo,
Makati City, and covered by TCT No. 144865.2 On October 27, 1983, Juanito executed a "Huling
Habilin at Testamento" giving petitioner Cresenciana Tubo Rodriguez, his live-in partner,
apartments D and E, and his children Benjamin Rodriguez (the deceased husband of respondent
Evangeline Rodriguez), apartment A, respondent Buenaventura Rodriguez, apartment B, and
respondent Belen Rodriguez, apartment C.3
However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over the property in favor
of petitioner.4 Thus, TCT No. 144865 was cancelled and a new TCT No. 150431 was issued in the
name of the petitioner.5
The case arose when petitioner filed on September 20, 2001 a complaint for unlawful detainer
against the respondents, alleging that she is the lawful and registered owner of the property; and
that in 1984, she allowed respondents Evangeline, Buenaventura and Belen, out of kindness and
tolerance, to personally occupy units A, B and D, respectively. However, without her knowledge
and consent, respondents separately leased the units to Montano Magpantay, Mel Navarro and
Socorro Escota, who despite repeated demands, failed and refused to vacate the premises and to
pay the rentals thereof.6
In their Answer, respondents claimed ownership over the subject property by succession. They
alleged that while petitioner is the registered owner of the property, however, she is not the lawful
owner thereof because the June 14, 1984 Deed of Absolute Sale was simulated and void. As in
Civil Case No. 01-1641 now pending before the RTC of Makati City, Branch 141, which they filed
to assail the validity of the said sale, respondents maintain that petitioner exerted undue influence
over their father, who at that time was seriously ill, to agree to the sale of the property for
only P20,000.00 after knowing that only two apartments were given to her in the Huling Habilin
at Testamento. Further, she had no cause of action against them for being a party to the August
23, 1990 Partition Agreement wherein they recognized each other as co-owners and partitioned
the property in accordance with the provision of the last will and testament.7
On February 26, 2002, the MTC rendered a judgment in favor of the respondents and held that
the deed of sale was simulated otherwise petitioner would not have entered into the Partition
Agreement, which legally conferred upon each heir exclusive ownership over their respective
shares, thus:
WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered to pay attorney's fees
of P10,000.00 and the costs of suit in favor of defendants. SO ORDERED.8
On appeal, the RTC reversed the decision of the MTC. It held that petitioner's certificate of title is
a conclusive evidence of ownership of the land described therein; and that unless and until said
title has been annulled by a court of competent jurisdiction, such title is existing and valid. This is
true also with respect to the deed of sale. The present action, which involves only the issue of
physical or material possession, is not the proper action to challenge it. Further, the MTC erred
when it relied heavily on the "Huling Habilin at Testamento," which was not probated hence has
no effect and no right can be claimed therein. The Partition Agreement which was allegedly
entered into pursuant to the Huling Habilin at Testamento should not also be considered. Thus:
WHEREFORE, premises considered, the decision rendered by the Metropolitan Trial Court, Branch
63, Makati City, is hereby ordered REVERSED AND SET ASIDE. Consequently, judgment is hereby
rendered ordering the defendants and all persons claiming rights under them to vacate the
premises and surrender the possession thereof to the plaintiff. Defendants are likewise ordered
to pay jointly and severally the plaintiff an amount of P5,000.00 a month per unit beginning 13
August 2001 until they finally vacate the premises and the costs of this suit.
SO ORDERED.9
Aggrieved, respondents filed a Petition for Review before the Court of Appeals which reversed
and set aside the decision of the RTC and reinstated the decision of the MTC. It held that the MTC
correctly received evidence on ownership since the question of possession could not be resolved
without deciding the issue of ownership. Further, the Huling Habilin at Testamento transmitted
ownership of the specific apartments not only to the respondents but also to the petitioner; and
pursuant thereto, the parties executed the Partition Agreement in accordance with the wishes of
the testator, thus:
WHEREFORE, this Court resolves to REVERSE and SET ASIDE the Decision of the Regional Trial
Court. The decision dated February 26, 2002 of the Metropolitan Trial Court, Branch 63, Makati
City in Civil Case No. 75717 dismissing the complaint for ejectment is hereby REINSTATED. SO
ORDERED.10
The motion for reconsideration was denied hence, petitioner filed the present Petition for
Review raising the following errors:
I. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN REVERSING AND SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL
COURT AND REINSTATING THE DECISION OF THE METROPOLITAN TRIAL COURT DISMISSING
PETITIONER'S COMPLAINT FOR UNLAWFUL DETAINER.
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR OF LAW AND GRAVE ABUSE OF
DISCRETION IN DECLARING THAT THE PROPERTY, A PARCEL OF LAND UPON WHICH A FIVE-
UNIT APARTMENT STANDS, BECAME THE SUBJECT OF JUANITO RODRIGUEZ'S HULING HABILIN
AT TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO HIS HEIRS (HEREIN
RESPONDENTS) INCLUDING THE RESPONDENT (PETITIONER HEREIN).11
Petitioner alleges that as the registered owner of the subject property, she enjoys the right of
possession thereof and that question of ownership cannot be raised in an ejectment case unless
it is intertwined with the issue of possession. While the court may look into the evidence of title
or ownership and possession de jure to determine the nature of possession, it cannot resolve the
issue of ownership because the resolution of said issue would effect an adjudication on ownership
which is not proper in the summary action for unlawful detainer. Petitioner insists that the Court
of Appeals erred in ruling that the Huling Habilin at Testamento transmitted ownership of the
specific apartments disregarding the fact that the same is not probated yet and that the testator
changed or revoked his will by selling the property to petitioner prior to his death.
Contrarily, respondents pray that the instant Petition for Review be dismissed since the resolution
of the question of ownership by the MTC and the Court of Appeals was provisional only to resolve
the issue of possession. Petitioner can always avail of legal remedies to have the issue of
ownership passed upon by the proper court. Aware of the provisional nature of the resolution on
ownership in ejectment cases, respondents filed Civil Case No. 01-1641 to assail the validity of
the deed of sale of the property and the registration thereof in petitioner's name.
The petition has merit.
An action for unlawful detainer exists when a person unlawfully withholds possession of any land
or building against or from a lessor, vendor, vendee or other persons, after the expiration or
termination of the right to hold possession, by virtue of any contract, express or implied.12 The
sole issue to be resolved is the question as to who is entitled to the physical or material possession
of the premises or possession de facto.13 Being a summary proceeding intended to provide an
expeditious means of protecting actual possession or right to possession of property, the question
of title is not involved14 and should be raised by the affected party in an appropriate action in the
proper court.15
However, when the issue of ownership is raised the court is not ousted of its jurisdiction. Section
16 of Rule 70 of the Rules of Court provides:
SEC 16. Resolving defense of ownership. - When the defendant raises the defense of ownership
in his pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of possession.
Thus, all that the trial court can do is to make an initial determination of who is the owner of the
property so that it can resolve who is entitled to its possession absent other evidence to resolve
ownership.16 But this adjudication is only provisional and does not bar or prejudice an action
between the same parties involving title to the property.17
In the case at bar, petitioner's cause of action for unlawful detainer was based on her alleged
ownership of land covered by TCT No. 150431 and that she merely tolerated respondents' stay
thereat. However, when respondents leased the apartments to other persons without her consent,
their possession as well as those persons claiming right under them became unlawful upon their
refusal to vacate the premises and to pay the rent. On the other hand, respondents assailed
petitioner's title by claiming that the deed of sale upon which it was based was simulated and
void. They insisted that they were co-owners thus, they have the right to possess the said
property. To prove their claim, they presented the Huling Habilin at Testamento of Juanito
Rodriguez and the Partition Agreement.
The lower courts considered the following documentary evidence in arriving at their respective
decisions, albeit the RTC decision contradicts that of the MTC and Court of Appeals: 1) Huling
Habilin at Testamento executed by Juanito Rodriguez on October 27, 1983; 2) Deed of Sale of
the property executed by Juanito Rodriguez and the petitioner on June 14, 1984; 3) TCT No.
150431 in the name of the petitioner; and 4) the August 23, 1990 Partition Agreement executed
by both the respondents and the petitioner.
Based on the foregoing documentary evidence, we find that there is preponderance of evidence
in favor of the petitioner's claim. Respondents failed to prove their right of possession, as the
Huling Habilin at Testamento and the Partition Agreement have no legal effect since the will has
not been probated. Before any will can have force or validity it must be probated. This cannot be
dispensed with and is a matter of public policy.18 Article 838 of the Civil Code mandates that "[n]o
will shall pass either real or personal property unless it is proved and allowed in accordance with
the Rules of Court." As the will was not probated, the Partition Agreement which was executed
pursuant thereto can not be given effect. Thus, the fact that petitioner was a party to said
agreement becomes immaterial in the determination of the issue of possession.
Moreover, at the time the deed of sale was executed in favor of the petitioner, Juanito Rodriguez
remained the owner thereof since ownership would only pass to his heirs at the time of his death.
Thus, as owner of the property, he had the absolute right to dispose of it during his lifetime. Now,
whether or not the disposition was valid is an issue that can be resolved only in Civil Case No. 01-
1641, an action instituted by the respondents for that purpose.
We are, thus, left with the deed of sale and the certificate of title over the property to consider.
We agree with the RTC that a certificate of title is a conclusive evidence of ownership of the land
described therein; the validity of which shall not be subject to a collateral attack, especially in an
ejectment case which is summary in nature.
In Ross Rica Sales Center, Inc. v. Ong,19 the Court held that:
The long settled rule is that the issue of ownership cannot be subject of a collateral attack.
In Apostol v. Court of Appeals, this Court had the occasion to clarify this:
. . . Under Section 48 of Presidential Decree No. 1529, a certificate of title shall not be subject to
collateral attack. It cannot be altered, modified or cancelled, except in a direct proceeding for that
purpose in accordance with law. The issue of the validity of the title of the respondents can only
be assailed in an action expressly instituted for that purpose. Whether or not the petitioners have
the right to claim ownership over the property is beyond the power of the court a quo to determine
in an action for unlawful detainer.
Further, in Co v. Militar,20 it was held that:
[T]he Torrens System was adopted in this country because it was believed to be the most effective
measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim
of ownership is established and recognized.
It is settled that a Torrens Certificate of title is indefeasible and binding upon the whole world
unless and until it has been nullified by a court of competent jurisdiction. Under existing statutory
and decisional law, the power to pass upon the validity of such certificate of title at the first
instance properly belongs to the Regional Trial Courts in a direct proceeding for cancellation of
title.
As the registered owner, petitioner had a right to the possession of the property, which is one of
the attributes of ownership. x x x
We emphasize, however, that our ruling on the issue of ownership is only provisional to determine
who between the parties has the better right of possession. It is, therefore, not conclusive as to
the issue of ownership, which is the subject matter of Civil Case No. 01-1641. Our ruling that
petitioner has a better right of possession was arrived at on the basis of evidence without prejudice
to the eventual outcome of the annulment case, where the issue as to who has title to the property
in question is fully threshed out. As the law now stands, in an ejectment suit, the question of
ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to
possession de facto.
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No.
91442 dated June 27, 2006 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court
of Makati City, Branch 134, in Civil Case No. 03-517, reversing the Decision of the Metropolitan
Trial Court (MTC) of Makati City, Branch 63, in Civil Case No. 75717, is REINSTATED. SO
ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445 June 23, 1966
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.
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.
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 head-on 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:
Nov. 17, 1951
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
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:
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.
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

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

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 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

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.

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.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence
on the part of the petitioner; that at the time of the execution of the Will, the testator was already
very sick and that petitioner having admitted her living in concubinage with the testator, she is
wanting in integrity and thus, letters testamentary should not be issued to her.
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.
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.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.
LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition
for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June
27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the
court to probate the will and to close the proceedings. Because filed ex parte, the motion was
denied. The same motion was filed a second time, but with notice to the adverse party. The
motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court,
the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines
Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated
as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and
engaged the services of an attorney to undertake his defense. Preliminary investigation of the
case was continued twice upon petition of the complainant. The complaint was finally dismissed,
at the instance of the complainant herself, in an order dated December 8, 1932. Three months
later, or on March 2, 1933, the same intervenor charged the petitioner for the second time with
the same offense, presenting the complaint this time in the justice of the peace court of Mexico,
Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and
engaged the services of counsel to defend him. This second complaint, after investigation, was
also dismissed, again at the instance of the complainant herself who alleged that the petitioner
was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to
be exact, the same intervenor accused the same petitioner for the third time of the same offense.
The information was filed by the provincial fiscal of Pampanga in the justice of the peace court of
Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the
services of defense counsel. The case was dismissed on April 24, 1934, after due investigation,
on the ground that the will alleged to have been falsified had already been probated and there
was no evidence that the petitioner had forged the signature of the testatrix appearing thereon,
but that, on the contrary, the evidence satisfactorily established the authenticity of the signature
aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of
First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23,
1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services
of counsel to handle his defense. The reinvestigation dragged on for almost a year until February
18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The
petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to
have been forged had already been probated. This demurrer was overruled on December 24,
1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal
were filed. The motion for reconsideration and the proposed appeal were denied on January 14,
1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case claiming
again that the will alleged to have been forged had already been probated and, further, that the
order probating the will is conclusive as to the authenticity and due execution thereof. The motion
was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with
preliminary injunction to enjoin the trial court from further proceedings in the matter. The
injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the petition
for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a
separate opinion. The case is now before this court for review on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special
proceeding before a court or judge of the Philippine Islands or of the United States, or of any
State or Territory of the United States, having jurisdiction to pronounce the judgment or order,
may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate of a will,
or the administration of the estate of a deceased person, or in respect to the personal, political,
or legal condition or relation of a particular person, the judgment or order is conclusive upon the
title of the thing, the will or administration, or the condition or relation of the person Provided,
That the probate of a will or granting of letters of administration shall only be prima facie evidence
of the death of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a
probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the
real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal
to the Supreme Court; and the allowance by the court of a will of real and personal estate shall
be conclusive as to its due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot
be impugned on any of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding. Sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3
Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347;
Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; in re Estate of Johnson,
39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually considered as
conclusive as to its due execution and validity, and is also conclusive that the testator was of
sound and disposing mind at the time when he executed the will, and was not acting under duress,
menace, fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis
ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken
almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State
relative to the effect of the probate of a will are of persuasive authority in this jurisdiction. The
Vermont statute as to the conclusiveness of the due execution of a probated will reads as follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed in the
probate court, or by appeal in the county or supreme court; and the probate of a will of real or
personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504):
"The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole world,
and when probate is granted, the judgment of the court is binding upon everybody, even against
the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil.,
938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires
jurisdiction over all the persons interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding
against all of them.
Through the publication of the petition for the probate of the will, the court acquires jurisdiction
over all such persons as are interested in said will; and any judgment that may be rendered after
said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance upon the
will itself to determine its validity. The judgment determines the status of the instrument, whether
it is or is not the will of the testator. When the proper steps required by law have been taken the
judgment is binding upon everybody, and makes the instrument as to all the world just what the
judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713,
715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the
probate court are statutory and are not governed by common law rules as to parties or causes of
action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55;
30 Atl., 695.) No process is issued against anyone in such proceedings, but all persons interested
in determining the state or conditions of the instrument are constructively notified by the
publication of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate
98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law
expressly directs to be made from particular facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this code to be conclusive.
Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn.,
80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13
N.Y.S., 311.) The will in question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion
that "the judgment admitting the will to probate is binding upon the whole world as to the due
execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not
for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English
Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier
English decisions to the effect that upon indictment for forging a will, the probating of the same
is conclusive evidence in the defendants favor of its genuine character. Reference is made,
however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a),
decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836,
decided in 1818, which establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the will was
forged; and a payment to the executor named therein of a debt due the decedent will discharge
the same, notwithstanding the spurious character of the instrument probated. It has also been
held that, upon an indictment for forging a will, the probate of the paper in question is conclusive
evidence in the defendants favor of its genuine character. But this particular point has lately been
ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in
the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion,
to hold that "according to later and sounder decisions, the probate, though conclusive until set
aside of the disposition of the property, does not protect the forger from punishment." This was
reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711,
715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion
of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under
review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida,
and comes to the conclusion that the decisions cited in the majority opinion do not appear to
"have been promulgated in the face of statutes similar to ours." The dissenting opinion cites
Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is
only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English
Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no
statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised
Statutes) makes the probate conclusive evidence as to the validity of the will with regard to
personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida
cited by the majority opinion, supra, refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice
Norton of the Supreme Court of California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate
of a will relating to real estate is there necessary. The real estate, upon the death of the party
seized, passes immediately to the devisee under the will if there be one; or if there be no will, to
the heir at law. The person who thus becomes entitled takes possession. If one person claims to
be the owner under a will, and another denies the validity of the will and claims to be the owner
as heir at law, an action of ejectment is brought against the party who may be in possession by
the adverse claimant; and on the trial of such an action, the validity of the will is contested, and
evidence may be given by the respective parties as to the capacity of the testator to make a will,
or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other
circumstance affecting its character as a valid devise of the real estate in dispute. The decision
upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive
upon the parties to that action and upon any person who may subsequently acquire the title from
either of those parties; but the decision has no effect upon other parties, and does not settle what
may be called the status or character of the will, leaving it subject to be enforced as a valid will,
or defeated as invalid, whenever other parties may have a contest depending upon it. A probate
of a will of personal property, on the contrary, is a judicial determination of the character of the
will itself. It does not necessarily or ordinarily arise from any controversy between adverse
claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance
of its provisions. In case of any controversy between adverse claimants of the personal estate,
the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce
any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from
that stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to
be testamentary and executed in accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857,
and the Court of Probate in turn was, together with other courts, incorporated into the Supreme
Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of
1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the
fact, however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in
support of their theory that the probate of a forged will does not protect the forger from
punishment, was decided long before the foregoing amendatory statutes to the English law on
wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less
authoritative on the law of England at the time of the promulgation of the decision in the case of
Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law of
California for the review of an order probating a will, in order that the estate may be escheated
to the State of California for the review of an probated will was forged and that Broderick therefore
died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon
these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee
capable of inheriting and holding it, has been admitted to probate and established as a genuine
will by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide
whether that decree, and the will established by it, or either of them, can be set aside and vacated
by the judgment of any other court. If it shall be found that the decree of the Probate Court, not
reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned
by any other court, either incidentally or by any direct proceeding, for the purpose of impeaching
it, and that so long as the probate stands the will must be recognized and admitted in all courts
to be valid, then it will be immaterial and useless to inquire whether the will in question was in
fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that
case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a
decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly
probated will cannot be declared to be a forgery without disturbing in a way the decree allowing
said will to probate. It is at least anomalous that a will should be regarded as genuine for one
purpose and spurious for another.
The American and English cases show a conflict of authorities on the question as to whether or
not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We
have examined some important cases and have come to the conclusion that no fixed standard
maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory
provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort,
to choose that rule most consistent with our statutory law, having in view the needed stability of
property rights and the public interest in general. To be sure, we have seriously reflected upon
the dangers of evasion from punishment of culprits deserving of the severity of the law in cases
where, as here, forgery is discovered after the probate of the will and the prosecution is had
before the prescription of the offense. By and large, however, the balance seems inclined in favor
of the view that we have taken. Not only does the law surround the execution of the will with the
necessary formalities and require probate to be made after an elaborate judicial proceeding, but
section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate
remedy to any party who might have been adversely affected by the probate of a forged will,
much in the same way as other parties against whom a judgment is rendered under the same or
similar circumstances. (Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file an
application for relief with the proper court within a reasonable time, but in no case exceeding six
months after said court has rendered the judgment of probate, on the ground of mistake,
inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first
instance when that court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921;
Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a
judgment allowing a will to be probated has become final and unappealable, and after the period
fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the
legislative wisdom goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide
whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to
set aside a probate decree establishing a will, on the ground that the decree was procured by
fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery.
There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed
to judge of the validity of a will, except as shown by the probate, for the exception of probate
decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments
obtained by fraud. But whether the exception be founded in good reason or otherwise, it has
become too firmly established to be disregarded. At the present day, it would not be a greater
assumption to deny the general rule that courts of chancery may set aside judgments procured
by fraud, than to deny the exception to that rule in the case of probate decrees. We must
acquiesce in the principle established by the authorities, if we are unable to approve of the reason.
Judge Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery, and
was compelled to yield to the weight of authority. He says "No other excepted case is known to
exist; and it is not easy to discover the grounds upon which this exception stands, in point of
reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)"
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American
State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of
Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had
been duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However, the
other legal question with reference to the denial to the accused of his right to a speedy trial having
been squarely raised and submitted, we shall proceed to consider the same in the light of cases
already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . .
shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O.
No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the
Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the
Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear
to have been taken from similar provisions in the Constitution of the United States (6th
Amendment) and those of the various states of the American Union. A similar injunction is
contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More
than once this court had occasion to set aside the proceedings in criminal cases to give effect to
the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of
Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15,
1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons,
has a right to a speedy trial in order that if innocent she may go free, and she has been deprived
of that right in defiance of law. Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily postponed without her consent,
is palpably and openly unjust to her and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could have prepared the case for a trial free
from vexatious, capricious, and oppressive delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused had not been
given a fair and impartial trial. The case was to have been remanded to the court a quo for a new
trial before an impartial judge. This step, however, was found unnecessary. A review of the
evidence convinced this court that a judgment of conviction for theft, as charged, could not be
sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every
person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We
said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the
right to a speedy trial. This criminal proceeding has been dragging on for almost five years now.
The accused have twice appealed to this court for redress from the wrong that they have suffered
at the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been
con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required
bond of P3,000 which was finally reduced to P300. The Government should be the last to set an
example of delay and oppression in the administration of justice and it is the moral and legal
obligation of this court to see that the criminal proceedings against the accused come to an end
and that they be immediately dis-charged from the custody of the law. (Conde vs. Rivera and
Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court,
after referring to the constitutional and statutory provisions guaranteeing to persons accused of
crime the right to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho
a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra de acuerdo
con la ley de procedimiento criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas
y opersivas (Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13
Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD.,
601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474;
State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos
admitidos resulta que al recurrente se le concedio vista parcial del asunto, en el Juzgado de
Primera Instancia de Samar, solo despues de haber transcurrido ya mas de un ao y medio desde
la presentacion de la primera querella y desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe
aadirse que laprimera transferencia de vista era claramente injustificadaporque el motivo que se
alego consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose
probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el
recurrente habia pedido que, en vez de sealarse a vista el asunto para el mayo de 1936, lo fuera
para el noviembre del mismo ao; pero,aparte de que la razon que alego era bastante fuerte
porquesu abogado se oponia a comparecer por compromisos urgentes contraidos con anterioridad
y en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a entraren juicio,
aparece que la vista se pospuso por el Juzgado amotu proprio, por haber cancelado todo el
calendario judicial preparado por el Escribano para el mes de junio. Declaramos, con visto de
estos hechos, que al recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of
the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial, this court said:
Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado delito
de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia
de las denuncias que contra el se presentaron fue arrestado tres veces y para gozar de libertad
provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000
cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la
incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones
continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua
que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El
Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el
acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente
culpable del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta
y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que
existe un remedio positivo para los casos en que se viola el derecho constitucional del acusado de
ser juzgado prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la
causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur.
Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y Fernandez, 35
Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to. Nevertheless,
we are of the opinion that, under the circumstances, we should consider the substance of the
right instead of indulging in more or less academic or undue factual differentiations. The petitioner
herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged
the services of counsel to undertake his defense an equal number of times. The first arrest was
made upon a complaint filed by one of the intervenors herein for alleged falsification of a will
which, sixteen months before, had been probated in court. This complaint, after investigation,
was dismissed at the complainant's own request. The second arrest was made upon a complaint
charging the same offense and this complaint, too, was dismissed at the behest of the complainant
herself who alleged the quite startling ground that the petitioner was in poor health. The third
arrest was made following the filing of an information by the provincial fiscal of Pampanga, which
information was dismissed, after due investigation, because of insufficiency of the evidence. The
fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against
the petitioner on the pretext that he had additional evidence to present, although such evidence
does not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of falsification.
This, however, does not matter. The prosecution of offenses is a matter of public interest and it
is the duty of the government or those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay. The Constitution does not say
that the right to a speedy trial may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced
by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy
trial, irrespective of the nature of the offense or the manner in which it is authorized to be
commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free
from criticism. From October 27, 1932, when the first complaint was filed in the justice of the
peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information
with the justice of the peace of Mexico, one year, three months and six days transpired; and from
April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of
Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the
fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to have
dragged on for about a year. There obviously has been a delay, and considering the antecedent
facts and circumstances within the knowledge of the fiscal, the delay may not at all be regarded
as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all
prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his
duty to see that criminal cases are heard without vexatious, capricious and oppressive delays so
that the courts of justice may dispose of them on the merits and determine whether the accused
is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to
a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox,
3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable
length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed.
It is not to be supposed, of course, that the Constitution intends to remove from the prosecution
every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or
extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with
delays and depends upon circumstances. It secures rights to a defendant. It does not preclude
the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law.
ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his
brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial
compromise," but this fact, we think, casts doubt instead upon the motive which led the
intervenors to bring criminal action against the petitioner. The petitioner claims that the intention
of the intervenors was to press upon settlement, with the continuous threat of criminal
prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of
counsel for the petitioner in this regard is not without justification. Thus after the filing of the
second complaint with the justice of the peace court of Mexico, complainant herself, as we have
seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante
delicada," and, apparently because of failure to arrive at any settlement, she decided to renew
her complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of Appeals
that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy
trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court
of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging,
among other things, "Que por estas continuas acusaciones e investigaciones, el acusado
compareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado
por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y
zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada salud."
The foregoing allegation was inserted on page 6 of the amended petition for certiorari presented
to the Court of Appeals. The constitutional issue also appears to have been actually raised and
considered in the Court of Appeals. In the majority opinion of that court, it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the
following questions of law: First, that the respondent court acted arbitrarily and with abuse of its
authority, with serious damage and prejudice to the rights and interests of the petitioner, in
allowing that the latter be prosecuted and arrested for the fourth time, and that he be subjected,
also for the fourth time, to a preliminary investigation for the same offense, hereby converting
the court into an instrument of oppression and vengeance on the part of the alleged offended
parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for about five years
and caused the arrest on four different occasions of a law abiding citizen for the alleged offense
of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 95329 January 27, 1993
HERACIO R. REVILLA, petitioner,
vs.
HON. COURT OF APPEALS, FORTUNATO REVILLA, LUZ REVILLA DAVID, LORETO
REVILLA GUTIERREZ, VENERANDA REVILLA MANIQUEZ, NICASIO REVILLA,
PERFECTA REVILLA BALACANIA, JUSTINA REVILLA DEL ROSARIO and AGRIPINA
REVILLA CHACON, respondents.
Manahan, Conrado De Vera, Aquino & Associates Law Offices for petitioner.
Abad, Bautista & Associates for private respondents.
GRIO-AQUINO, J.:
This is a petition for review of the decision dated September 13, 1990 of the Court of Appeals in
CA-G.R. CV No. 18190 affirming the decision of the Regional Trial Court of Manila, Branch 39, in
Special Proceeding No. 86-38444 which disallowed the second will supposedly executed on
September 13, 1982 by the late Don Cayetano Revilla whose first Will dated January 28, 1978 had
been probated on March 21, 1980 on his own petition in Special Proceeding No. 128828 of the
same court, while he was still alive.
In our resolution of November 19, 1990, we denied the petition for review for it raises only factual
issues. However, upon the petitioner's motion for reconsideration, we set aside that resolution
and gave due course to the petition so that the parties may argue their respective positions with
more depth and scope. After a more thorough consideration of those arguments, we are
persuaded that the decision of the Court of Appeals should not be changed.
Don Cayetano Revilla y De la Fuente owned two valuable pieces of land with buildings on Calle
Azcarraga (now C.M. Recto Street) in the City of Manila, and six (6) parcels of land in his
hometown of San Miguel, Bulacan. These properties, now worth some P30 million, are registered
in his name and more particularly described as follows:
a) TRANSFER CERTIFICATE OF TITLE NO. 76620 (not TCT No. 170750-ind.) REGISTRY OF DEEDS
FOR THE CITY OF MANILA
A PARCEL OF LAND (Lot. No. 22 of Block No. 2565 of the Cadastral Survey of the City of Manila,
Cadastral Case No. 46, G.L.R.O. Cadastral Record No. 229) with the buildings and other
improvements now found thereon, situated on the SW, line of Calle Azcarraga, District of Quiapo,
. . . containing an area of ONE THOUSAND ONE HUNDRED NINETY THREE SQUARE METERS AND
SEVENTY SQUARE DECIMETERS (1,193.70), more or less, Assessed value P1,834,980.00.
b) TRANSFER CERTIFICATE OF TITLE NO. 66173 (now TCT No. 170751-ind.) REGISTRY OF
DEEDS FOR THE CITY OF MANILA
A PARCEL OF LAND ( Lot No. 24 of Block No. 2565 of the Cadastral Survey of the City of Manila,
Cadastral Case No. 46, G.L.R.O. Cadastral Record No. 229) with the buildings and improvements
now found thereon, situated on the SW. line of Calle Azcarraga; District of Quiapo. . . .
containing an area of SEVEN HUNDRED SQUARE METERS AND SEVENTY SQUARE DECIMETERS
(700.70), MORE OR LESS.
Assessed value P3,297,150.00
c) TRANSFER CERTIFICATE OF TITLE NO. T-192136 REGISTRY OF DEEDS FOR THE PROVINCE
OF BULACAN
A parcel of land (Lot 1245-A-6 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-
A, Psd-11366, LRC Cad. Rec. No. 700), situated in the Barrio of Salacot, Mun. of San Miguel,
Prov. of Bulacan, Island of Luzon. . . . containing an area of TEN THOUSAND (10,000) SQUARE
METERS, more or less.
Assessed value P4.000.00
d) TRANSFER CERTIFICATE OF TITLE NO. T-192137 REGISTRY OF DEEDS FOR THE PROVINCE
OF BULACAN
A parcel of land [Lot 1245-A-7 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-
A, Psd-11366, LRC Cad. Rec. No. 700], situated in the Barrio of Salacot, Mun. of San Miguel,
Prov. of Bulacan, Island of Luzon, . . . containing an area of SEVEN THOUSAND EIGHT
HUNDRED NINETY (7,890) SQUARE METERS, more or less.
Assessed value P3,790.00
e) TRANSFER CERTIFICATE OF TITLE NO. T-22049 REGISTRY OF DEEDS FOR THE PROVINCE
OF BULACAN
A parcel of land (Lot 1245-A-9 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-
A, Psd-11366, LRC Cad. Rec. No. 700), situated in the Barrio of Salacot, Municipality of San
Miguel, Prov. of Bulacan, . . . containing an area of ONE THOUSAND FIVE HUNDRED FOURTEEN
(1,514) SQUARE METERS, more or less.
Assessed value P4,000.00
f) TRANSFER CERTIFICATE OF TITLE NO. 22263 REGISTRY OF DEEDS FOR THE PROVINCE OF
BULACAN
A parcel of land (Lot No. 722 of the Cadastral Survey of San Miguel), situated in the Municipality
of San Miguel. . . . containing an area of SEVENTEEN THOUSAND AND EIGHTY SIX (17,086)
SQUARE METERS, more or less.
Assessed value P4,190.00
g) TRANSFER CERTIFICATE OF TITLE NO. T-242301 REGISTRY OF DEEDS FOR THE PROVINCE
OF BULACAN
A parcel of land (Lot 108 of the Cad. Survey of San Miguel), situated in the Municipality of San
Miguel. . . . containing an area of FIVE HUNDRED AND SEVENTY THREE SQUARE METERS more
or less.
Assessed value P8,600.00
h) Cemetery lots with a mausoleum (Lots Nos. 66, 67, 68, 69, 70 and 71, Block No. 3) situated
at the Sta. Rita Memorial Park, San Miguel, Bulacan (no commercial value). (pp. 63-64, Rollo.)
On January 28, 1978, Don Cayetano Revilla, a bachelor, without issue nor any surviving
ascendants, executed a last will and testament bequeathing all his properties to his nine (9)
nephews and nieces, the parties herein, who are full blood brothers and sisters, including the
petitioner, Heracio Revilla. To each of them, he bequeathed an undivided one-tenth (1/10) of
his estate reserving the last tenth for masses to be said after his death, and for the care of the
religious images which he kept in a chapel in San Miguel, Bulacan, where masses could be held
also (p. 126, Records).
During his lifetime, Don Cayetano had himself sought the probate of his will and on March 21,
1980 the Court of First Instance of Manila, Branch X, after due hearing in Special Proceeding No.
128828, allowed and admitted said will to probate.
On November 19, 1981, however, the City Hall of Manila was destroyed by fire. The records of
Special Proceeding No. 128828 also went up in flames. Shortly thereafter, a petition for the
reconstitution of the records of Special Proceeding No. 128828 was filed, and after a proper
hearing wherein Don Cayetano testified again, the petition for reconstitution was granted. (Exh.
"34"). (pp. 51-52, 179, Rollo.)
Don Cayetano died on November 11, 1986 at the age of 91.
On November 19, 1986, Heracio Revilla, the oldest nephew, filed a petition for probate of
another will, allegedly executed by Don Cayetano on September 13, 1982 wherein he (Heracio)
was instituted as sole heir of his uncle's estate and executor of the will.
The probate of the second will was opposed by Heracio's eight (8) brothers and sisters, the
private respondents herein. As grounds for their opposition, they alleged:
. . . a) that on March 21, 1980 in Special Proceeding No. 128828, the then Court of First
Instance of Manila, Branch 10, allowed and admitted to probate the last will and testament of
the deceased Cayetano Revilla and that since then and up to the time of his death, Cayetano
Revilla never informed that he revoked the will dated January 28, 1978; (b) that the will sought
to be probated was not executed in accordance with law and that the signature of Cayetano
Revilla was different from his usual and customary signature; (c) that when the will was
allegedly executed the decedent was already of unsound mind or otherwise mentally incapable
of making a will or was already incompetent and could not, without outside aid, take care of
himself and manage his properties becoming thereby an easy prey of deceit and exploitation; d)
that the alleged will was executed with undue and improper pressure and influence on the part
of he beneficiaries thereon or some other persons for their benefit; e) that the will is void and
ineffective for the reason that it was executed under duress or the influence of fear or of
threats; and f) that the decedent acted by mistake and the signatures in the alleged will were
procured by fraud or trick, and he did not intend that the instrument should be his will at the
time of fixing (sic) his signatures thereto (Opposition to Probate of Alleged Will, pp. 7-8,
Records).
The private respondents also opposed Heracio's petition for appointment as executor and/or
special administrator of the estate on the ground that the alleged will is null and void, hence the
designation therein of Heracio as executor is likewise null and void, and that moreover, he is
unfit for the trust (pp. 9-12. Records).
In an order dated May 7, 1987, the lower court held in abeyance the resolution of the issue with
regard to the propriety of Heracio's being appointed as executor (pp. 34-36, Records), but
ordered the parties to present their evidence pro and con vis-a-vis the probate of the second will
(Ibid).
On December 1, 1987, the trial court rendered a decision disallowing the second will and,
accordingly, dismissed the case with costs against the petitioner (Decision. pp. 144-184,
Records; pp. 52-53. Rollo.)
On appeal to the Court of Appeals (CA-G.R. CV No. 18190, Sept. 19, 1990), the decision of the
lower court was affirmed. This petition for review was filed by Heracio under Rule 45 of the
Rules of Court.
The lone issue in this case is whether the Court of Appeals (and the trial court) erred in
disallowing the alleged second will of Don Cayetano Revilla.
After a careful examination of the records, we share the appellate court's doubts regarding the
authenticity and due execution of the second will. Indeed, when Don Cayetano testified on
November 27, 1982 in the reconstitution proceedings, he was unaware of the second will which
he supposedly made only two months previous on September 13, 1982. He identified his first
will and declared that it was his true and only will. He denied having subsequently made another
will. He could not have executed a second will on September 13, 1982 because he was sick in
the hospital at that time for two (2) months before October 21, 1982, or, in August to
September 1982, and he did not, and could not, sign any papers while he was confined in the
hospital.
ATTY. DAVID
May I request that this letter dated October 21, 1982, be marked Exhibit "C" . . .
xxx xxx xxx
By the way Mr. Revilla, will you tell us whether you can still read when you signed this letter?
A Yes, I can.
Q Did you read the contents of this letter?
A Yes, I did.
Q When you were sick, before you signed this letter on October 21, 1982, were you confined
at the hospital?
A Yes.
Q How long were you confined at the hospital, was it for one month?
A More than one month, may be two months.
Q When you were in the hospital you cannot sign because you were sick?
A No, I cannot sign.
xxx xxx xxx
Q Will you tell us Don Cayetano if you ever executed a last will and testament after this one
has been probated by the Court?
A None, sir. (pp. 20-30, tsn, November 27, 1982.)
He recognized the original will and acknowledged that he signed it.
ATTY. DAVID
. . . we were granted by the Court permission to come here to find out from you about your will
approved by the Court which was burned which needs to be reconstituted which Atty. Dacanay
undertook as your counsel and I was included because your heirs requested me, . . . Since the
documents were burned, we have here a brown envelope which states on its face "Buksan ito
pagkalibing ko" then a signature Cayetano Revilla that one in the Court which was
approved by the Court we would like to request from you if this is the envelope which contains a
copy of the will and if this is your signature?
xxx xxx xxx
Q And at the back of this envelope are four signatures, are these your signatures?
A (Looking over the four signatures at the back of the envelope) Yes, these are all my
signatures.
Q And your instructions were to open this envelope . . . "Buksan ito pagkalibing ko."
A Yes, that is right.
Q And since you are still alive you asked the Court that your last will and testament be
approved and allowed and what is in the last will and testament is what will prevail?
A Yes, sir. (pp. 119-120, Rollo; Emphasis ours.)
He identified his first will and directed Atty. David to deliver it to the Court: "siyang ibigay sa
husgado" (p. 122. Rollo).
ATTY. DAVID
Now that I have told you in the presence of your grandson-in-law, Atty. Latosa, that the last will
and testament which the court admitted and allowed to probate was burned, why I asked you if
this is the envelope and you remember this is the envelope and you said you do, and that the
five signatures appearing in this envelope are your signatures, now are you willing to have this
envelope opened?
A Yes, kung anong nandiyan, siyang ibigay sa husgado. (p. 122, Rollo.)
Although the envelope containing a copy of the first will was sealed, with instructions to open it
after his funeral, Don Cayetano wanted "to open it now" (p. 123, Rollo).
ATTY. LATOSA
Can you please read what is written in that envelope which you allowed to be opened.
A Yes, "buksan ito pagkalibing ko."
ATTY. DAVID
Do you want to open this now?
A Yes.
Q Do you wish to open this envelope now?
A Yes, I want to open it now.
(p. 23, Rollo.)
Don Cayetano declared that he understood that the document inside the envelope was his will
["naiintindihan ko po iyon" (p. 131, Rollo)].
Q This envelope which contained the last will and testament which I took the contents in your
presence and in the presence of the other representation here including the representatives of
the Court, the document contained therein is entitled, "Unang Pahina, Huling Habilin Ni Don
Cayetano Revilla," consisting of fourteen pages, the title means that this is your last will and
testament?
A Yes, Naiintindihan ko po iyon.
Q And you executed this on the 28 of January as appearing . . . 28th of January 1978, as
appearing on the 13th page of this last will and testament?
A Yes.
Q And all pages of this last will and testament were all signed by you which reads Cayetano
Revilla, will you go over these fourteen pages and tell us if the signatures here reading
Cayetano Revilla are your signatures?
A (After going over the document, page by page and looking at the signature reading
Cayetano Revilla in every page) Yes, these are all my signatures, the ones reading Cayetano
Revilla. (p 131, Rollo; Emphasis supplied.)
He recognized himself and his lawyer, Attorney Benjamin Dacanay, in the pictures that were
taken during the signing of his first will.
Q Now, in this envelope there are pictures five pictures in all, will you go over these and tell
us if you can remember any of those persons appearing in the pictures?
A This one, (testator pointing to a person in the picture) is Mr. Dacanay.
ATTY. DAVID
May I request that this picture wherein Don Cayetano Revilla identified Atty. Dacanay, be
marked as Exhibit "D".
There is a person in this picture, the one second from the left, will you go over it and see if you
remember that person?
A I am that person.
Q Now in this second picture, do you recognize anybody here?
A Yes, I can recognize myself when I was signing the will.
Q Who else do you know is present in that picture?
A This one, he is Mr. Dacanay.
Q How about the other one?
A I don't know the others. (p. 133, Rollo; Emphasis supplied.)
Don Cayetano assured Attorney David that his original will was his "genuine will and testament
and not changed" (p. 134, Rollo).
ATTY. DAVID
xxx xxx xxx
We are doing this Mr. Revilla because in case there will be an opposition to this last will and
testament we can prove that this is the genuine will and testament and not changed.
A Yes, that is true sir, that is the truth. (p. 134, Rollo.)
He declared that he did not execute another last will and testament after the original will had
been probated.
Q Will you tell us Don Cayetano if you ever executed a last will and testament after this one
has been probated by the Court?
A None, sir. (p. 135. Rollo.)
The petitioner's contention that Don Cayetano's denial constitutes "negative declaration" which
has no "probative value under the rules of evidence" (p. 73, Rollo) is not correct. Don
Cayetano's assertion that he did not execute another will, was not negative evidence. Evidence
is negative when the witness states that he did not see or know the occurrence of a fact, and
positive when the witness affirms that a fact did or did not occur (2 Moore an Facts,
p 1338). Don Cayetano's declaration that he did not execute a second will, constitutes positive
evidence of a fact personally known to himself: that he did not make a second will. As correctly
held by the Court of Appeals:
This categorical denial by the late Cayetano Revilla must be believed by everybody. If he denied
having executed another will, who are we to insist that he made another or second will after the
probate of his will dated January 28, 1978? The testimonies of the alleged notary public as well
as the three instrumental witnesses of the alleged second will of the late Cayetano Revilla
cannot outweigh the denial of the late Cayetano Revilla. . . . . (p. 95, Rollo.)
Significantly, although the petitioner opposed the reconstitution of Don Cayetano's first will, he
did not reveal the second will which Don Cayetano supposedly made only two (2) months before
he testified in the reconstitution proceeding. Why was the second will kept under wraps? Did
Heracio fear that if Don Cayetano were confronted with the document, he would have disowned
it? The explanation of the petitioner that an inquiry into the existence of the second will "was
totally uncalled for, immaterial, and irrelevant" (p. 96, Rollo), is unconvincing. For if the second
will already existed on November 27, 1982, it would have been Heracio's strongest argument
against the reconstitution of the probate of the first will.
The petitioner's argument that Don Cayetano's testimony is inadmissible because petitioner's
counsel, Attorney Layosa, had no opportunity to
cross-examine him (p. 146, Rollo), does not wash. The opportunity was there all the time.
Attorney Layosa simply made no attempt to exercise his right to
cross-examine Don Cayetano.
If Don Cayetano's testimony was "an honest mistake due to a misapprehension of fact" as the
petitioner insists (p. 35, Rollo), that mistake would have been rectified by inviting his attention
to the second will. It seems, however, that Attorney Layosa was under constraint not to disclose
the second will to Don Cayetano.
Even the letter that Don Cayetano supposedly sent to the court disowning the petition for
reconstitution of the records of the first probate proceeding, did not disclose that he had already
made another will. As pointedly observed by the Court of Appeals, if Don Cayetano were aware
that he made a second will, he "could have easily told the Court that the reconstitution
proceeding was useless" because he had already made a second will revoking the first
(pp. 54-55, Rollo).
The testimonies of the notary and attesting witnesses and even the photographs of what
purported to be the signing of the second will were not given credit by the trial court and the
Court of Appeals. The court's observation that the photographs do not show the nature of the
document that was being signed, nor the date of the transaction, is valid. The lower court's
distrust for the testimonies of the attesting witnesses to the second will deserves our highest
respect (People vs. Sarol, 139 SCRA 125; Guita vs. CA., 139 SCRA 576; People vs. Cabanit, 139
SCRA 94).
Since the execution of the second will could not have occurred on the date (September 13,
1982) appearing therein (for Don Cayetano was admittedly sick in the hospital then) it must
have been procured at the time when the testator was a virtual prisoner, held incommunicado,
in his house. The Honorable Judge (later Court of Appeals Justice) Eduardo Bengson had to
issue an order commanding the petitioner to allow his eight (8) brothers and sisters to visit Don
Cayetano. Only then were they able to penetrate the iron curtain that Heracio had placed
around their uncle. A videotape, taken during their pleasant visit with the old man and shown in
court, belied Heracio's allegation that Don Cayetano was displeased with his said nephews and
nieces, that was why he left them out of his second will.
Despite Judge Bengzon's order, Heracio did not cease his efforts to monopolize Don Cayetano
and his estate. To isolate Don Cayetano and make him inacessible to the private respondents,
Heracio transferred him from his own house on Claro M. Recto Avenue in Manila to Heracio's
house in Novaliches, Quezon City.
The execution of the second will in an environment of secrecy and seclusion and the
disinheritance of his eight (8) other nephews and nieces of whom he was equally fond, justified
the trial court's and the Court of Appeals' belief that undue influence was exercised by Horacio
over Don Cayetano to make him sign the second will (which Don Cayetano did not know to be
such) in order to deprive his brothers and sisters of their rightful share in their uncle's estate.
The employment of undue influence by Heracio was not "mutually repugnant" to fraud (p.
172, Rollo) as the petitioner insists, for it was the means employed by Heracio to defraud his
brothers and sisters of their share in Don Cayetano's estate.
There was fraud because Don Cayetano was not apprised that the document he was signing
with Co, Barredo and Lim was a second will revoking the dispositions of property that he made
in his first will. Had he been aware that it was a second will, and if it were prepared at his own
behest, he would not have denied that he made it. He would probably have caused it to be
probated while he was still alive, as he did with his first will.
But apparently, the instrument was foisted on him without his being aware of its true nature
which the petitioner assiduously concealed, not only from the court and the private respondents,
but from Don Cayetano himself.
That the dispositions in the second will were not made by Don Cayetano is proven by the
omission therefrom of Don Cayetano's reservation of one-tenth of his properties and the income
thereof to pay for holy masses for the repose of his soul and to be spent for the maintenance of
his family chapel which houses the religious images he owned in San Miguel, Bulacan. That
provision in his first will, for his personal benefit, would not have been deleted by Don Cayetano
if his only purpose in making a second will was to disinherit his eight nephews and nieces. But
Heracio overdid himself. He wanted everything.
The objection to the deposition of Don Cayetano for want of an oath before he testified, is
tardy. Objection to the lack of an oath should have been made at the taking of his deposition.
Section 29(d), Rule 24 of the Rules of Court provides:
(d) As to oral examination and other particulars
Errors and irregularities occurring at the oral examination in the manner of taking the
deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct
of the parties and errors of any kind which might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection thereto is made at the taking of the
deposition. (Emphasis ours.)
While the petitioner puts much stock in the supposed due execution of the will and the
competence of the attesting witnesses Co, Barredo and
Lim the trial court, with whom the Court of Appeals agreed, gave them low marks for
credibility. The factual observations of the Court of Appeals on this point are quoted below:
Witness Dr. Co's testimony that he did not charge the late Cayetano Revilla for two services
rendered by him and that he only charged when a third service was made was also doubted by
the lower court. Said the court a quo:
. . . witnesses Co, a practicing dentist was munificent enough not to charge Don Cayetano for
two time services and only charged him the 3rd time.
It may be added here that the testimony of Dr. Co that the testator read his will in silence
before they were asked to affix their signatures (tsn., Aug. 17, 1987, pp. 30-31, 45) is
completely different from the testimony of another witness (Fernando Lim) who testified that
the late Don Cayetano read his will aloud before he gave it to the witnesses for their signatures
(tsn., Aug. 13, 1987, pp. 47, 52).
The above citations of the inconsistencies and contradictions fatally made by said witnesses are
only some of the more important ones as discussed in the decision of the lower court. But they
are enough, to say the least, to convince this Court that indeed said witnesses crossed the
boundaries of their credibilities. (pp. 56-57, Rollo.)
WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for
review is DENIED. Costs against the petitioner.
SO ORDERED.
Cruz, Padilla and Bellosillo, JJ., concur.

Assuming for the sake of arguments that the second will was executed, the testimonies of the
notary public who prepared and before whom the will was acknowledged, as well as those of
the three (3) instrumental witnesses thereof were not given credit by the lower court, and so
with this Court, because of major contradictions in testimonies.

As regards notary public Atty. Mendoza, the court a quo doubted his credibility as follows:

The prevarications on the testimonies of witnesses are not difficult to find especially if we
consider that in a second meeting only with Don Cayetano, Atty. Mendoza would readily be
entrusted with the delicate and confidential preparation of a second will, designed to disinherit
his eight nephews and nieces in favor of Heracio, the operator of the bowling alley where
witness Mendoza always play; . . . (p. 36, Decision; p. 179, Records)

. . . Added to this is the statement of Atty. Mendoza that the old man could understood (sic)
both English or Tagalog. On this score, this Court entertains doubt as to its truthfulness because
it was testified to by Barredo, prosecution witness and corroborated by Ms. Bingel, principal
witness for the oppositors, that the old man is versatile in Tagalog as he is a Bulakeo but could
not speak English except to say word, yes, sir. . . . . (p. 33, Decision, p. 176, Records).

With respect to witness Alfredo Barredo, the truthfulness of his testimonies was doubted by the
lower court in this wise:

. . . . Another point noticed by this Court is the testimony of Alfredo Barredo that after talking
with Atty. Mendoza at the phone he was asked by the old man to fetch the 2 witnesses however
when asked on direct examination, he stated that he stayed all along with the old man and did
not leave him even after talking with Atty. Mendoza, which spells a whale of difference in time
element and enormously distanced from the truth. So also, his exaggerated demonstration of
the ability of the old man in answering even small children yes, sir, is too good to be true. . . . .
(pp. 33-34, Decision, pp. 176-177, Records).
 SECOND DIVISION
[G.R. No. 93980. June 27, 1994.]
CLEMENTE CALDE, Petitioner, v. THE COURT OF APPEALS, PRIMO AGAWIN and
DOMYAAN APED, Respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE COURT OF APPEALS; RULE; CASE
AT BAR, AN EXCEPTION. The question in the case at bench is one of fact: whether or not,
based on the evidence submitted, respondent appellate court erred in concluding that both
decedents Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses
on separate occasions. As a general rule, factual findings of the Court of Appeals are considered
final and conclusive, and cannot be reviewed on appeal to this court. In the present instance,
however, there is reason to make an exception to that rule, since the finding of the respondent
court is contrary to that of the trial court.
2. ID.; ID.; SOURCES THEREOF; EXPLAINED. It is accepted that there are three sources from
which a tribunal may properly acquire knowledge for making its decisions, namely: circumstantial
evidence, testimonial evidence, and real evidence or autoptic proference. Wigmore explains these
sources as follows: "If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on the subject would be the
testimony of a witness who had seen the arm; in believing this testimonial evidence, there is an
inference from the human assertion to the fact asserted. A second source of belief would be the
mark left on some substance grasped or carried by the accused; in believing this circumstantial
evidence, there is an inference from the circumstance to the thing producing it. A third source of
belief remains, namely, the inspection by the tribunal of the accuseds arm. This source differs
from the other two in committing any step of conscious inference or reasoning, and in proceeding
by direct self-perception, or autopsy. "It is unnecessary, for present purposes, to ask whether this
is not, after all, a third source of inference, i.e., an inference from the impressions or perceptions
of the tribunal to the objective existence of the thing perceived. The law does not need and does
not attempt to consider theories of psychology as to the subjectivity of knowledge or the
mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of
judicial investigation, a thing perceived by the tribunal as existing does exist. "There are indeed
genuine cases of inference by the tribunal from things perceived to other things unperceived
as, for example, from a persons size, complexion, and features, to his age; these cases of a real
use of inference can be later more fully distinguished . . . . But we are here concerned with nothing
more than matters directly perceived for example, that a person is of small height or is of dark
complexion; as to such matters, the perception by the tribunal that the person is small or large,
or that he has a dark or light complexion, is a mode of acquiring belief which is independent of
inference from either testimonial or circumstantial evidence. It is the tribunals self-perception, or
autopsy, of the thing itself. "From the point of view of the litigant party furnishing this source of
belief, it may be termed Autoptic Proference."
3. ID.; ID.; ID.; RULE WHEN AUTOPTIC PROFERENCE CONTRADICTS TESTIMONIAL EVIDENCE.
In the case at bench, the autoptic proference contradicts the testimonial evidence produced by
petitioner. The will and its codicil, upon inspection by the respondent court, show in black and
white or more accurately, in black and blue that more than one pen was used by the
signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve
petitioners claim that both testamentary documents in question were subscribed to in accordance
with the provisions of Art. 805 of the Civil Code.
4. ID.; ID.; WEIGHT OF EVIDENCE; TESTIMONY OF NOTARY PUBLIC ACKNOWLEDGING THE
WILL, NOT ACCORDED GREAT WEIGHT IN CASE AT BAR. Neither did respondent court err
when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two testamentary documents were subscribed and
attested to, starting from decedents thumbmarking thereof, to the alleged signing of the
instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Toletes
testimony is there any kind of explanation for the different-colored signatures on the testaments.
DECISION
PUNO, J.:
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of
Appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by
Calibia Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property.
She also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated
July 24, 1973. Both documents contained the thumbmarks of decedent. They were also signed
by three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the
Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of
Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly
substituted by petitioner. Private respondents, relatives of decedent, opposed the Petition filed
by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect
that decedent did not know; that decedent was mentally incapacitated to execute the two
documents because of her advanced age, illness and deafness; that decedents thumbmarks
were procured through fraud and undue influence; and that the codicil was not executed in
accordance with law.chanrobles virtual lawlibrary
On June 23, 1988, the trial court rendered judgment on the case, approving and allowing
decedents will and its codicil. The decision was appealed to and reversed by the respondent
Court of Appeals. It held:
". . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but
for one crucial factor of discrepancy in the color of ink when the instrumental witnesses affixed
their respective signatures. When subjected to cross-examination, Codcodio Nacnas as witness
testified as follows:
Q: And all of you signed on the same table?
A: Yes, sir.
Q: And when you were all signing this Exhibit B and Exhibit B-1, Exhibit B and B-1 which is
the testament was passed around all of you so that each of you will sign consecutively?
A: Yes, sir.
Q: Who was the first to sign?
A: Calibia Lingdan Bulanglang.
Q: After Calibia Lingdan Bulanglang was made to sign I withdraw the question. How did
Calibia Lingdan Bulanglang sign the last will and testament?
A: She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete
directed her hand or her thumb to her name.
Q: After she signed, who was the second to sign allegedly all of you there present?
A: Jose Becyagen.
Q: With what did Jose Becyagen sign the testament, Exhibit B and B-1?
A: Ballpen.
Q: And after Jose Becyagen signed his name with the ballpen, who was the next to sign?
A: Me, sir.
Q: And Jose Becyagen passed you the paper and the ballpen, Exhibit B and B-1 plus the
ballpen which used to sign so that you could sign your name, is that correct?
A: Yes, sir.
Q: And then after you signed, who was the next to sign the document, Exhibit B and B-1?
A: Hilario Coto-ong.
Q: So you passed also to Hilario Coto-ong the same Exhibit B and B-1 and the ballpen so that
he could sign his name as witness to the document, is it not?
A: Yes, sir.
Q: And that is the truth and you swear that to be the truth before the Honorable Court?
ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:
Witness may answer.
A: Yes, sir.
"For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the
codicil that:
"Q: When you signed Exhibit D and D-1, did you all sign with the same ballpen?
A: One.
"Such admissions from instrumental witnesses are indeed significant since they point to no other
conclusion than that the documents were not signed by them in their presence but on different
occasions since the same ballpen used by them supposedly in succession could not have
produced a different color from blue to black and from black to blue. In fact, the attestation
clause followed the same pattern. The absurd sequence was repeated when they signed the
codicil, for which reason, We have no other alternative but to disallow the Last Will and Codicil.
Verily, if the witnesses and testatrix used the same ballpen, then their signatures would have
been in only one color, not in various ones as shown in the documents. Moreover, the
signatures, in different colors as they are, appear to be of different broadness, some being finer
than the others, indicating that, contrary to what the testamentary witnesses declared on the
witness stand, not only one ballpen was used, and, therefore, showing that the documents were
not signed by the testatrix and instrumental witnesses in the presence of one another. . . ."
(Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was
denied by the respondent court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness of the respondent courts
conclusion that both decedents will and codicil were not subscribed by the witnesses in the
presence of the testator and of one another, contrary to the requirements of Article 805 of the
Civil Code. He contends that:
"1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A
WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME
COURT BY CONCLUDING BASED ON PURE SPECULATION OR SURMISES AND WITHOUT
REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE
THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE
SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
"2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A
WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME
COURT BY DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE
LAST WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN
BULANGLANG."
The petition must fail.
The question in the case at bench is one of fact: whether or not, based on the evidence
submitted, respondent appellate court erred in concluding that both decedents Last Will and
Testament, and its Codicil were subscribed by the instrumental witnesses on separate occasions.
As a general rule, factual findings of the Court of Appeals are considered final and conclusive,
and cannot be reviewed on appeal to this court. In the present instance, however, there is
reason to make an exception to that rule, since the finding of the respondent court is contrary
to that of the trial court, viz.:
". . . (Private respondents) pointed out however, that the assertions of petitioners witnesses are
rife with contradictions, particularly the fact that the latters signatures on the documents in
issue appear to have been written in ballpens of different colors contrary to the statements of
said witnesses that all of them signed with only one ballpen. The implication is that the
subscribing witnesses to the Will and Codicil, and the testatrix did not simultaneously sign each
of the documents in one sitting but did it piecemeal a violation of Art. 805 of the Code. This
conclusion of the (private respondents) is purely circumstantial. From this particular set of facts,
numerous inferences without limits can be drawn depending on which side of the fence one is
on. For instance, considering the time interval that elapsed between the making of the Will and
Codicil, and up to the filing of the petition for probate, the possibility is not remote that one or
two of the attesting witnesses may have forgotten certain details that transpired when they petitioners claim that both testamentary documents in question were subscribed to in
attested the documents in question. . . ." (Rollo, pp. 36-37.) accordance with the provisions of Art. 805 of the Civil Code.

A review of the facts and circumstances upon which respondent Court of Appeals based its Neither did respondent court err when it did not accord great weight to the testimony of Judge
impugned finding, however, fails to convince us that the testamentary documents in question Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary
were subscribed and attested by the instrumental witnesses during a single occasion. documents were subscribed and attested to, starting from decedents thumbmarking thereof, to
the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless,
As sharply noted by respondent appellate court, the signatures of some attesting witnesses in nowhere in Judge Toletes testimony is there any kind of explanation for the different-colored
decedents will and its codicil were written in blue ink, while the others were in black. This signatures on the testaments.
discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two
pens were used by the signatories on the two documents. In fact, two (2) of petitioners IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent
witnesses even testified that only one (1) ballpen was used in signing the two testamentary Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and
documents. Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN
TOTO. Costs against petitioner.
It is accepted that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial evidence, and SO ORDERED.
real evidence or autoptic proference. Wigmore explains these sources as follows:
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
"If, for example, it is desired to ascertain whether the accused has lost his right hand and wears
an iron hook in place of it, one source of belief on the subject would be the testimony of a
witness who had seen the arm; in believing this testimonial evidence, there is an inference from
the human assertion to the fact asserted. A second source of belief would be the mark left on
some substance grasped or carried by the accused; in believing this circumstantial evidence,
there is an inference from the circumstance to the thing producing it. A third source of belief
remains, namely, the inspection by the tribunal of the accuseds arm. This source differs from
the other two in committing any step of conscious inference or reasoning, and in proceeding by
direct self-perception, or autopsy.

"It is unnecessary, for present purposes, to ask whether this is not, after all, a third source of
inference, i.e., an inference from the impressions or perceptions of the tribunal to the objective
existence of the thing perceived. The law does not need and does not attempt to consider
theories of psychology as to the subjectivity of knowledge or the mediateness of perception. It
assumes the objectivity of external nature; and, for the purposes of judicial investigation, a
thing perceived by the tribunal as existing does exist.

"There are indeed genuine cases of inference by the tribunal from things perceived to other
things unperceived as, for example, from a persons size, complexion, and features, to his
age; these cases of a real use of inference can be later more fully distinguished . . . . But we are
here concerned with nothing more than matters directly perceived for example, that a person
is of small height or is of dark complexion; as to such matters, the perception by the tribunal
that the person is small or large, or that he has a dark or light complexion, is a mode of
acquiring belief which is independent of inference from either testimonial or circumstantial
evidence. It is the tribunals self-perception, or autopsy, of the thing itself.

"From the point of view of the litigant party furnishing this source of belief, it may be termed
Autoptic Proference." 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial evidence produced by
petitioner. The will and its codicil, upon inspection by the respondent court, show in black and
white or more accurately, in black and blue that more than one pen was used by the
signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve