SUCCESSION: ART.

832

G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA

JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting
to probate the last will and testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants brought the case on
appeal to this Court for the reason that the value of the properties involved
exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or
ascending line. He was survived, however, by his wife, the herein petitioner
Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositorsappellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the
legitimate children of Candido Molo y Legaspi, deceased brother of the testator.
Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit
A) and another executed on June 20, 1939. (Exhibit I). The later will executed in
1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No. 8022
seeking the probate of the will executed by the deceased on June 20, 1939.
There being no opposition, the will was probated. However, upon petition filed
by the herein oppositors, the order of the court admitting the will to probate was
set aside and the case was reopened. After hearing, at which both parties
presented their evidence, the court rendered decision denying the probate of
said will on the ground that the petitioner failed to prove that the same was
executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for the probate of the will executed by
the deceased on August 17, 1918, which was docketed as special proceeding
No. 56, in the same court. Again, the same oppositors filed an opposition to the
petition based on three grounds: (1) that petitioner is now estopped from
seeking the probate of the will of 1918; (2) that said will has not been executed

in the manner required by law and (3) that the will has been subsequently
revoked. But before the second petition could be heard, the battle for liberation
came and the records of the case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be impossible because
neither petitioner nor oppositors could produce the copies required for its
reconstitution. As a result, petitioner filed a new petition on September 14, 1946,
similar to the one destroyed, to which the oppositors filed an opposition based
on the same grounds as those contained in their former opposition. Then, the
case was set for trial, and on May 28, 1948, the court issued an order admitting
the will to probate already stated in the early part of this decision. From this
order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in special proceeding No. 8022, in order to enable her to
obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now
estopped from seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come
to court with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918
was deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate
court erred in not holding that the petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in order to enable her to
obtain the probate of the will executed by the deceased on August 17, 1918,
pointing out certain facts and circumstances with their opinion indicate that
petitioner connived with the witness Canuto Perez in an effort to defeat and
frustrate the probate of the 1939 will because of her knowledge that said will
intrinsically defective in that "the one and only testamentory disposition thereof
was a "disposicion captatoria". These circumstances, counsel for the appellants
contend, constitute a series of steps deliberately taken by petitioner with a view
to insuring the realization of her plan of securing the probate of the 1918 will
which she believed would better safeguard her right to inherit from the decease.

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These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met
by counsel for petitioner who contends that to raise them in these proceedings
which are entirely new and distinct and completely independent from the other is
improper and unfair as they find no support whatsoever in any evidence
submitted by the parties in this case. They are merely based on the
presumptions and conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the probate of the 1939 will of
the deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio
Reyes was signing the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given her by the court to do
so. Apart from this insufficiency of evidence, the record discloses that this failure
has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her
inability to find witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not now, for
us to determine. It is an incident that comes within the province of the former
case. The failure of petitioner to present the testimony of Artemio Reyes at the
hearing has also been explained, and it appears that petitioner has filed
because his whereabouts could not be found. Whether this is true or not is also
for this Court to determine. It is likewise within the province and function of the
court in the former case. And the unfairness of this imputation becomes more
glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior
and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will executed on
June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will to probate was set
aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the
oppositors who contended that he will had not been executed as required by
law. After the evidence of both parties had been presented, the oppositors filed
an extensive memorandum wherein they reiterated their view that the will should
be denied probate. And on the strenght of this opposition, the court disallowed
the will.

If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective, because it
is a "disposicion captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to go through the order of
filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps
leading to the probate of the will executed in 1918. But for her conscience was
clear and bade her to take the only proper step possible under the
circumstances, which is to institute the necessary proceedings for the probate of
the 1939 will. This she did and the will was admitted to probate. But then the
unexpected happened. Over her vigorous opposition, the herein appellants filed
a petition for reopening, and over her vigorous objection, the same was granted
and the case was reopened. Her motion for reconsideration was denied. Is it her
fault that the case was reopened? Is it her fault that the order admitting the will
to probate was set aside? That was a contingency which petitioner never
expected. Had appellants not filed their opposition to the probate of the will and
had they limited their objection to the intrinsic validity of said will, their plan to
defeat the will and secure the intestacy of the deceased would have perhaps
been accomplished. But they failed in their strategy. If said will was denied
probate it is due to their own effort. It is now unfair to impute bad faith petitioner
simply because she exerted every effort to protect her own interest and prevent
the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants.
Indeed, petitioner cannot be considered guilty or estoppel which would prevent
her from seeking the probate of the 1918 will simply because of her effort to
obtain the allowance of the 1939 will has failed considering that in both the 1918
and 1939 wills she was in by her husband as his universal heir. Nor can she be
charged with bad faith far having done so because of her desire to prevent the
intestacy of her husband. She cannot be blamed being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained in
1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and
still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in
the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts
involved in that case are on all fours with the facts of this case. Hence, the
doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case we are indeed impressed by their striking similarity with the facts

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of this case. We do not need to recite here what those facts are; it is enough to
point out that they contain many points and circumstances in common. No
reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity
with the provisions of section 618 of the Code of Civil Procedure as to
the making of wills, cannot produce the effect of annulling the previous
will, inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while
they do not disagree with the soundness of the ruling laid down in the Samson
case, there is reason to abandon said ruling because it is archaic or antiquated
and runs counter to the modern trend prevailing in American jurisprudence.
They maintain that said ruling is no longer controlling but merely represents the
point of view of the minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil Procedure, which governs
the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution of
the subsequent will, and does not require that it first undergo the formality of a
probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the
decisions had been promulgated, however, we are reluctant to fall in line with
the assertion that is now the prevailing view in the United States. In the search
we have made of American authorities on the subject, we found ourselves in a
pool of conflicting opinions perhaps because of the peculiar provisions contained
in the statutes adopted by each State in the subject of revocation of wills. But
the impression we gathered from a review and the study of the pertinent
authorities is that the doctrine laid down in the Samson case is still a good law.
On page 328 of the American Jurisprudence Vol. 57, which is a revision
Published in 1948, we found the following passages which in our opinion truly
reflect the present trend of American jurisprudence on this matter affecting the
revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument.
Ordinarily, statutes which permit the revocation of a will by another
writing provide that to be effective as a revocation, the writing must be
executed with the same formalities which are required to be observed in
the execution of a will. Accordingly, where, under the statutes,
attestation is necessary to the making of a valid will, an unattested non

testamentary writing is not effective to revoke a prior will. It has been

held that a writing fails as a revoking instrument where it is not executed
with the formalities requisite for the execution of a will, even though it is
inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot
reserve to himself the power to modify a will by a written instrument
subsequently prepared but not executed in the manner required for a
will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or
Codicil. A will which is invalid because of the incapacity of the
testator, or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft of
a later one. Nor is a will revoked by a defectively executed will or codicil,
even though the latter contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a controlling statute that no
writing other than a testamentary instrument is sufficient to revoke a will,
for the simple reason that there is no revoking will. Similarly where the
statute provides that a will may be revoked by a subsequent will or other
writing executed with the same formalities as are required in the
execution of wills, a defectively executed will does not revoke a prior
will, since it cannot be said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on account of the manner
in which it is executed, is sufficient to pass only personally does not
affect dispositions of real estate made by a former will, even though it
may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328,
329.)
We find the same opinion in the American Law Reports, Annotated, edited in
1939. On page 1400, Volume 123, there appear many authorities on the
"application of rules where second will is invalid", among which a typical one is
the following:
It is universally agreed that where the second will is invalid on account
of not being executed in accordance with the provisions of the statute,
or where the testator who has not sufficient mental capacity to make a
will or the will is procured through undue influence, or the such, in other
words, where the second will is really no will, it does not revoke the first
will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in
the Samson case is predicated. They reflect the opinion that this ruling is sound

SUCCESSION: ART. 832

and good and for this reason, we see no justification for abondoning it as now
suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides
that a will may be some will, codicil, or other writing executed as proved in case
of wills" but it cannot be said that the 1939 will should be regarded, not as a will
within the meaning of said word, but as "other writing executed as provided in
the case of wills", simply because it was denied probate. And even if it be
regarded as any other writing within the meaning of said clause, there is
authority for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause,
said will of 1918 cannot still be given effect because of the presumption that it
was deliberately revoked by the testator himself. The oppositors contend that
the testator, after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately destroyed the original
of the 1918 will, and for that reason the will submitted by petitioner for probate in
these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the
revocatory clause contained in the will he executed in 1939. The only evidence
we have is that when the first will was executed in 1918, Juan Salcedo, who
prepared it, gave the original and copies to the testator himself and apparently
they remained in his possession until he executed his second will in 1939. And
when the 1939 will was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found the duplicate copy
(Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because
of his knowledge of the revocatory clause of the 1939 will, and it is true that he
gave a duplicate copy thereof to his wife, the herein petitioner, the most logical
step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is possible that
because of the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and forgetting that
there was a copy, the testator deemed it wise to execute another will containing
exactly the same testamentary dispositions. Whatever may be the conclusion
we may draw from this chain of circumstances, the stubborn fact is that there is
no direct evidence of voluntary or deliberate destruction of the first will by the
testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed
by the testator after the execution of the second will, which revoked the first,
could there be any doubt, under this theory, that said earlier will was destroyed
by the testator in the honest belief that it was no longer necessary because he
had expressly revoked it in his will of 1939? In other words, can we not say that
the destruction of the earlier will was but the necessary consequence of the
testator's belief that the revocatory clause contained in the subsequent will was
valid and the latter would be given effect? If such is the case, then it is our
opinion that the earlier will can still be admitted to probate under the principle of
"dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is
usually applied where the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a present intention to make
a new testamentary disposition as a substitute for the old, and the new
disposition is not made or, if made, fails of effect for same reason. The
doctrine is n limited to the existence of some other document, however,
and has been applied where a will was destroyed as a consequence of
a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected
with the making of another will so as fairly to raise the inference that the
testator meant the revocation of the old to depend upon the efficacy of a
new disposition intended to be substituted, the revocation will be
conditional and dependent upon the efficacy of the new disposition; and
if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force.
(Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a
new testamentary disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive conditions,
and hence prevents the revocation of the original will. But a mere intent
to make at some time a will in the place of that destroyed will not render
the destruction conditional. It must appear that the revocation is
dependent upon the valid execution of a new will. (1 Alexander, p. 751;
Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the petitioner to
produce it in court, such destruction cannot have the effect of defeating the prior
will of 1918 because of the fact that it is founded on the mistaken belief that the
will of 1939 has been validly executed and would be given due effect. The
theory on which this principle is predicated is that the testator did not intend to
die intestate. And this intention is clearly manifest when he executed two wills on

SUCCESSION: ART. 832

two different occasion and instituted his wife as his universal heir. There can
therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses,
Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses
died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca but placed on
the witness stand Juan Salcedo, the notary public who prepared and notarized
the will upon the express desire and instruction of the testator, The testimony of
these witnesses shows that the will had been executed in the manner required
by law. We have read their testimony and we were impressed by their readiness
and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

SUCCESSION: ART. 832

G.R. No. L-11823

February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION

EUGENIO, petitioners-appellants,
vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectorsappellants.
Guillermo Lualhati for appellants.
Perfecto Gabriel for appellees.
ARAULLO, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of
First Instance of the city of Manila for allowance as the will of Simeona F. Naval,
who died in said city two days previously, a document executed by her of
February 13, 1915, and in which he was appointed executor. The case was
recorded as No. 13386 and, after hearing the petition for allowance filed by said
executor, it was denied on the ground that said document was not duly executed
by the deceased as her last will and testament, inasmuch as she did not sign it
in the presence of three witness and the two witnesses did not sign it in the
presence of each other. Thereafter the nieces and legatees of the same
deceased filed in the same court for allowance as her will, another document
executed by her on October 31, 1914, and, consequently, the case was
registered under another number, which was No. 13579. The petition for
allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on
the ground that the will, the allowance of which is asked, could not be allowed,
because of the existence of another will of subsequent date, executed during
her lifetime by the same Simeona F. Naval, and because said will has been
revoked by another executed subsequently by her during her lifetime, and
further, because sail will has not been executed with the formalities required by
existing laws. Trial having taken place, at which evidence was adduced, the
court on February 8, 1916, issued an order, admitting said second document
and ordering its allowance as the last will and testament o said deceased. From
said order the opponents appealed to this court and transmitted to us the
corresponding declarations. Tow of the opponents, that is, Rosa and Cristina
Naval, assigned, as errors committed by the court, the following:
1. The finding of the court that the will of October 31, 1914, has not been
revoked by that of February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed with
the proceedings relative to the last case for the allowance of the will, No. 13579,

notwithstanding that proceedings had already been had in the other case No.
13386 and final judgment rendered therein; and
3. The act of the court in denying the motion for continuance of the trial on the
allowance of the will of October 31, 1914, which motion was presented for the
sole purpose of introducing evidence to show the falsity of the signature
appearing in said will and submitting said signature to the Bureau of Science for
analysis.
The other opponent, Monica Naval, assigned, besides the first two errors
already mentioned, the finding of the court that the disallowance of the will of
said deceased, dated February 13, 1915, on the ground that is was not
executed in such form that it could transmit real and personal property,
according to section 618 of the Code of Civil Procedure, also had the effect of
annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court
declared that the first document presented by the executor of the deceased,
Simeona F. Naval, as a will executed by her on February 13, 1915, and which
was the subject-matter of case No. 13386 of said court, could not be allowed, on
the ground that it was not executed with the requisites and formalities prescribed
by law. Article 739 of the Civil Code provides that a former will is by operation of
law revoked by another valid subsequent will, if the testator does not state in the
later will his desire that the former should subsist wholly or partly. In harmony
with this provision of substantive law, we find section 623 of the Code of Civil
Procedure, which provides that no will shall be revoked, except by implication of
law, otherwise than by some will, codicil, or other writing executed as provided in
case of wills.
Therefore, according to the legal provisions, in order that the will of February 13,
1915, that is, the first document presented as the will of the deceased Simeona
F. Naval, could have the effect of revoking that which was presented afterwards
by the petitioners as executed by the same deceased on October 31, 1914, that
is, on a date previous to the execution of the first, it was necessary and
indispensable that the later will, that is, that first presented for allowance, should
be perfect or valid, that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents themselves maintained that
said later will, that is, that of February 13, 1915, was not perfect, or executed as
provided by law in case of wills, and the Court of First Instance of Manila has so
held in disallowing said documents as the will of the deceased. So that it very
evident that the second will presented, that is, that of October 31, 1914, was not
and could not have been revoked by the first, and the court was not in error in so
holding in the order appealed from. We deem it unnecessary to add a single

SUCCESSION: ART. 832

word mere or cite well-known doctrines and opinions of jurists in support of what
has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to
refer to what the court below stated in the judgment appealed from. It is as
follows:
The court finds no incongruency in the presentation of a prior will when
another will of subsequent date has been disallowed. Disregarding the
fact that the petitioners in this case were not those who presented the
will in No. 13386, in which the petition was presented by the same D.
Perfecto Gabriel as executor, it is proper to take into account that the
object of a petition for allowance is to ask for an order declaring that a
will has been executed in accordance with the requisites and formalities
required by law. This is a question for the court to decide and is out of
the control of the party who presents the will. The allowance or
disallowance of a will by a competent court depends upon whether the
evidence adduced at the trial shows or does not show that the
formalities required by law have been complied with, and this cannot be
determined in advance, as a general rule, by the person who presents
the testament. for he has not always concurred in or seen the execution
of the will.
If, therefore, the personal who presents a will and asks that if be allowed
does not secure its allowance, and he has in his possession another
will, or has information that another exists, he does not contradict
himself by asking for the allowance of the will of earlier date merely
because the later will was declared invalid by the proper court. If in this
case there is any who adopts a contradictory position, it is the
respondent himself, inasmuch as in case No. 13386 he alleged, as a
ground for the disallowance of the will then presented, that it was not
executed in accordance with the law, and now he maintains the
contrary, for he claims that said will revoked that which is now
presented.
With respect to the third error, it is beyond doubt that the court did not commit it,
for it appears that when the examination of the witness, Cristina Samson, was
finished and the court told Attorney Lualhati, counsel for the respondents, to
continue adducing his evidence, he said he had no more proof, although he
added that he would ask the court to grant him permission to send the will of
1914 to the Bureau of Science, which petition was objected to by the attorney for
the proponents and denied by the court. Immediately thereafter the attorney for
the opponents asked for the continuance of the trial, which was also denied by
the court, after objection was made by the proponents. The attorney for the
opponents excepted to said ruling.

Therefore, the petition of said attorney for the remission of said will to the
Bureau of Science, in the terms in which it was made to the court, after ha had
stated that he had no more evidence to present, signified that he left it to the
discretion of the court to grant it or not. Furthermore, no exception was taken to
the order to the order denying this motion, and although the attorney for the
opponents excepted to the order denying the motion for continuance of the trial,
such exception was completely useless and ineffective for the purpose of
alleging before this court that the trial court erred in that respect, for said
resolution, being one of those left to the discretion of the court in the exercise of
it functions, according to section 141 of the Code of Civil Procedure, it could not
be the subject of an exception, unless the court, in denying said motion, abused
its discretional power and thereby prejudiced the essential rights of the
respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been
assigned by the opponent and appellant, Monica Naval, and refers, according to
her, to the court's action in declaring that the disallowance of the will of the
deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was
not executed in such manner and from that it could transmit real and personal
property, according to the provisions of section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in
said assignment of error, that is, it is not true that the court declared that,
because said will was not executed in the form required by law in order that it
may transmit real and personal property, according to the provisions of section
618, the disallowance of said will also had the effect of annulling the revocatory
clause therein contained. In the order appealed from there is no declaration or
conclusion made in these terms. The court did not say that the annulment of the
revocatory clause in said will was the effect or consequence of the fact that it
was not allowed on the ground that it was not executed in the form required by
law in order that it may transmit real and personal property. Referring to the
construction, given by the respondent to sections 618 and 623 of the Code of
Civil Procedure, to the effect that a subsequent will may revoke a previous will,
although the later will has not been allowed by the competent court, it being
sufficient that the intention of the testator to revoke the previous will should be
clearly expressed, and that, while the requisite of allowance is necessary in
order that it may transmit property from one person to another, it is not
necessary in order that it might procedure other effects, for example, the effect
of a revocatory clause, or a clause of aknowledgment of a child, what the
court declared, we repeat, was that although the revocation of a will should have
been effected, not by means of another will or codicil, but by mans of a
document, as authorized by said section 623, which document should have the
requisites and conditions fixed in section 618, the presentation of the document
to the court was necessary in order that the latter might allow it, by declaring that

SUCCESSION: ART. 832

it was executed with the formalities required by law for the execution of a will,
and finally concluding that, just as to, is to be proved that the requisites of
section 618 have been complied with in order that a will may be of value through
its allowance, so without such allowance the revocatory clause like the other
provisions of the will, has no value or effect except to show extraneous matters,
as, for example, the acknowledgment of natural children, of some debt or
obligation. In such case, the document could produce effect, but not as will, but
simply as a written admission made by the person executing it. And It is beyond
doubt that the revocatory clause contained in a document, like the present,
which contains provisions proper of a will, as those relating to legacies and
distribution of the properties of the testator after his death as well as the
appointment of executors, is not matter extraneous to the will, but merely a part
thereof, intimately connected with it as well as with the will or wills, the
revocation of which is declared in said clause; in short, the desire of the testator
declared in the revocatory clause is related to the desire of the same testator
expressed in the provisions of the testament in which said clause is found and to
that which he might have expressed in the testaments which he may have
previously executed. There is such relation between the revocatory clause and
the will which contains it, that if the will does not produce legal effects, because
it has not been executed in accordance with the provisions of the law, neither
would the revocatory clause therein produce legal effects. And if, in the present
case, the so-called will of the deceased, Simeona F. Naval, dated February 13,
1915, was not duly executed by her as her last will and testament, ad declared
by the court in its decision of November 19, 1915, in case No. 13386, for which
reason its allowance was denied, neither may it be maintained that the
revocatory clause contained in said will is the expression of the last will of said
deceased. The disallowance of the ill, therefore, produced the effect of annulling
the revocatory clause, not exactly because said will was not executed in such
from that it could transmit real and personal property, as inaccurately alleged by
the appellant, Monica Naval, to be the court's finding, upon which said
assignment of error is based, but because it was proved that said will was not
executed or signed with the formalities and requisites required by section 618 of
the Code of Civil Procedure, a cause which also produces the nullity of the same
will, according to section 634 of said law; and of course what is invalid in law can
produce no effect whatever.
If the instrument propounded as a revocation be in form a will, it must be
perfect as such, and be subscribed and attested as is required by the
statute. An instrument intended to be a will, but filing of its effect as such
on account of some imperfection in its structure or for want of due
execution, cannot be set up for the purpose of revoking a former will.
(40 Cyc., p. 1177, and cases cited therein.)

have any effect, and the same kind, quality, and method of proof is
required for the establishment of the subsequent will as was required for
the establishment of the former will. (40 Cyc., p. 1178, and cases cited
therein.)
But admitting that the will said to have been executed by the deceased Simeona
F. Naval on February 13, 1915, notwithstanding its inefficacy to transmit
property for the reason that it has not been executed, according to the
provisions of said section 618 of the Code of Civil Procedure, should be
considered as executed by her in order to express her desire, appearing in one
of its clauses, to revoke and annul any previous will of hers, as stated in clause
13, this being the argument adduced by the appellant, Monica naval, in support
of said assignment of error neither could it be maintained that, the allowance
of said will having been denied by the court on November 11, 1915, said
revocatory clause subsists and the intention expressed by the testratrix therein
is valid and legally effective, for the simple reason that, in order that a will may
be revoked by a document, it is necessary, according to the conclusive
provisions of section 623 of said procedural law, that such documents be
executed according to the provisions relating to will in section 618, and the will in
question, or, according to the respondent, the so-called document, was not
executed according to the provisions of said section, according to the express
finding of the trial court in its order of November 11, 1915, acquiesced in by the
opponent herself, and which is now final and executory. Therefore, the
disallowance of said will and the declaration that it was not executed according
to the provisions of law as to wills, produced the effect of annulling said
revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval,
cites the declaration made by the Supreme Court of Massachusetts in Wallis vs.
Wallis (114 Mass., 510, 512)m which, according to the appellant herself, was in
the following terms:
If it be shown that a later will was duly executed and attested, containing
a clause expressly revoking former will nothing else appearing as to its
contents, it is nevertheless good as a revocation, but it can only be
made available by setting it up in opposition to the probate of the earlier
will.
In the decision of said case the finding referred to be by the appellant appears
not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:

A subsequent will containing a clause revoking an earlier will must, as a

general rule, be admitted to probate before the clause of revocation can

SUCCESSION: ART. 832

When a will revoking a former will is in existence, it must be established

in the Probate Court; but when it has been lost or destroyed, and its
contents cannot be sufficiently proved to admit it to probate, it may
nevertheless be availed of as a revocation in opposition to the probate
of the will revoked by it.:
And in the body of the decision there is a declaration, to which the appellant
must have desired to refer in her brief, which declaration says:
If it can be proved that a later will was duly executed, attested and
subscribed, and that it contained a clause expressly revoking all former
wills, but evidence of the rest of its contents cannot be obtained, it is
nevertheless a good revocation; and it can be made available only by
allowing it to be set up in opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the
facts of the case at bar. That was a case concerning a will filed by one of the
children of the testatrix, Mary Wallis, as her last will, to the allowance of which
another son objected, alleging that said will had been revoked by another
executed by the same deceased subsequent to the will that was filed, and that it
had been fraudulently destroyed or taken by his brother, the proponent and his
wife, or by one of them, in order to deprive him of the rights conferred upon him
by said will. Therefore, the will said to have been subsequently executed by the
testatrix and in which, according to the oppositor, the clause revocatory of the
former will appeared, was not presented by said oppositor, while the previous
will was, in the contrary, filed for allowance by the son of the testratrix, who
appeared to be favored therein, said oppositor having alleged that the
subsequent will, that is, that containing the revocatory clause, had been drawn,
subscribed and executed in accordance with the provisions of the law, a fact
which he was ready to prove just as he was ready to prove that it had been
destroyed or suppressed by the proponent, his brother and his wife, or one of
them. In the case at bar, the subsequent will containing the revocatory clause of
the previous will executed by the deceased Simeona F. Naval was presented to
the court for allowance and it was disallowed a fact which gave opportunity to
the legatees of said deceased to present a previous will executed by her on
October 31, 1914, and said two wills having been successively presented,
evidence as to them was also successively adduced for their allowance by the
court.
Therefore, the declaration made by the Supreme Court of Massachusetts in
Wallis vs. Wallis (supra), to the effect that a subsequent will containing a
revocatory clause of previous wills, constitutes a valid revocation and may be
used in objecting to the allowance of the previous will, even when it is not
possible to obtain proof of the remainder of the contents of said subsequent will,
refers to the case in which the latter had been taken away, destroyed or

suppressed, and it was impossible to present it for allowance, but requires for
that purpose that it be proved that said subsequent will has been executed,
attested, and subscribed in due form and that it contained, furthermore, that
revocatory clause. This is what said declaration and, in relation thereto, also
what the syllabus of the decision thereof clearly says. The court, through Chief
Justice Gray, in giving its opinion, thus began by saying:
By our law, no will can be revoked by any subsequent instrument, other
than a "will, codicil or writing, signed, attested and subscribed in the
manner provided for making a will." And when an instrument of
revocation is in existence and capable of being propounded for probate,
its validity should be tried by a direct proceeding instituted for the
purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case
decided by the Supreme Court of Massachusetts, to which the appellant Monica
Naval refers, and that which is not before us, it is wholly unquestionable that,
whether the case deals with a subsequent will revocatory of a previous will,
which may possibly be presented to a probate court for allowance, or of a
subsequent will, also revocatory of a previous will, which could not be presented
for allowance, because it has been taken or hidding, or mislaid in order that
such will may constitute a valid revocation and be utilized in the second case,
although the remaining provisions may not be proven, in opposition to the
allowance of the previous will, it is necessary to prove that it was executed,
attested, and subscribed in due form, and, of course, also that it contained a
clause expressly revoking the previous will, or, what is the same thing, that said
subsequent will has been executed according to the provisions relating to wills,
as expressed in section 623 of the procedural law in force. There can be no
doubt whatever that this applies when the revocation had been made to appear
in a writing or document susceptible of presentation for allowance, like the socalled will of the deceased Simeona F. Naval, dated February 13, 1915, and
considered by said respondent and appellant as a mere document of revocation,
for, as already seen in said decision invoked by her, the requisite as to signing,
attesting, and subscribing in the form, required by law for the execution of wills
in order that it may revoke a previous will, is also required in a will as well as in a
codicil, or in a writing, and in referring to a document of revocation, it is also
expressed that its validity should be proved in a direct proceeding, instituted for
the purpose in a probate court. In the case at bar, the document, executed by
the deceased, Simeona F. Naval, as her last will and testament, dated February
13, 1915, has been presented for allowance; it validity has been proved by
means of said procedure in the Court of Probate of Manila, and that court denied
its allowance, on the ground that the document in question had not been duly
executed by the deceased, as her last will and testament, because she did not
sign in the presence of three witnesses, and two of these witnesses did not sign
in the presence of each other, or what is the same thing, that said document has

SUCCESSION: ART. 832

not be attested and subscribed in the manner established by law for the
execution of will, or, in other words, as provided by law in case of wills, as stated
by section 623 of said procedural law, and this resolution was acquiesced in, as
already stated, by the respondents in this case, and is, therefore, final and
executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of
Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the
provision of said section 623 of our procedural law and article 739 of the Civil
Code, and the will executed by the deceased Simeona F. Naval on October 31,
1914, not having been revoked, according to these provisions, by the will
presented and alleged as executed by the same deceased subsequently on
February 13, 1915, the allowance of which was denied by the Court of First
Instance of Manila, the court below was not in error in ordering the allowance of
said will, that is, of that of October 31, 1914, as the last will and testament of
said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance
against the appellants. So ordered.
Arellano, C.J., Torres, Carson, Streets and Malcolm, JJ., concur.

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