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.)

CA

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

ROSA K. KALAW, petitioner,

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

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

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

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

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

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

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence,
on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and insertions without the proper authentication by
the full signature of the testatrix as required by Article 814 of the Civil Code reading:

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

ROSA's position was that the holographic Will, as first written, should be given effect and probated so that
she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI
reported that the handwriting, the signature, the insertions and/or additions and the initial were made
by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad
K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the
alterations and/or insertions or additions above-mentioned were not authenticated by the full signature
of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel
to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor
was it impliedly understood, that the oppositors would be in estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full
signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby
denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right
of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for
interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of
whether or not 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 litem not been noted under his signature, ... the Will is not thereby invalidated as a whole,
but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave an
Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite
of full authentication by the full signature of the testator, the effect must be that the entire Will is voided
or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To
state that the Will as first written should be given efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in
the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not
the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by
the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his
commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was
derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de
un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por
el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision
solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del
testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien
de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por
el testador la enmienda del guarismo ultimo del año en que fue extendido3(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.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting
her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own
handwriting. (I find it peculiar that the testatrix who was obviously an educated person would unthinkingly
make such crude alterations instead of consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be noted that the first alteration crossing
out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the
testatrix. Only the second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will replacing Gregorio for Rosa as
sole heir is properly denied, since the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix
had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa
as sole heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as her next of
kill succeed to her intestate estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual
finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting
her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own
handwriting. (I find it peculiar that the testatrix who was obviously an educated person would unthinkingly
make such crude alterations instead of consulting her lawyer and writing an entirely new holographic wig
in order to avoid any doubts as to her change of heir. It should be noted that the first alteration crossing
out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the
testatrix. Only the second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will replacing Gregorio for Rosa as
sole heir is properly denied, since the same was not duly authenticated by the full signature of the
executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of the trial court's factual finding that the testatrix
had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa
as sole heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as her next of
kill succeed to her intestate estate.

G.R. No. L-47799 June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.

Ozamiz & Capistrano for petitioners.

Gullas, Leuterio, Tanner & Laput for respondents.

MORAN, J.:

Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named
Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia Akutin,
five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first
marriage, died on October 2, 1923, that is, a little less than eight years before the death of said Agripino
Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz,
Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March 21, 1932, he
willed that his children by the first marriage shall have no longer any participation in his estate, as they
had already received their corresponding shares during his lifetime. At the hearing for the declaration of
heirs, the trial court found, contrary to what the testator had declared in his will, that all his children by
the first and second marriages intestate heirs of the deceased without prejudice to one-half of the
improvements introduced in the properties during the existence of the last conjugal partnership, which
should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the two-thirds part which the testator could freely
dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition
for certiorari.

The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the
first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or
whether the will may be held valid, at least with respect to one-third of the estate which the testator may
dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of
the second marriage.

The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows:

Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted,
is not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but
the legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the
legitime, shall be valid.

The appellate court thus seemed to have rested its judgment upon the impression that the testator had
intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will
that supports this conclusion. True, the testator expressly denied them any share in his estate; but the
denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that
the children by the first marriage had already received more than their corresponding shares in his lifetime
in the form of advancement. Such belief conclusively negatives all inference as to any intention to
disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the
Court of Appeals. The situation contemplated in the above provision is one in which the purpose to
disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the
instant case.

The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el
articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo
conocida su existencia por el testador, de aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere principles (en el terreno de los principios)
and not on the express provisions of the law. Manresa himself admits that according to law, "no existe
hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a
personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a
los descendientes legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children
by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the
first marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part
as follows:

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
betterments shall be valid, in so far as they are not inofficious.

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.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage
were mentioned in the will, they were not accorded any share in the heriditary property, without
expressly being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The
omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the
purpose to disinherit is not expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814
of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art.
814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the
instant case, no such legacies or betterments have been made by the testator. "Mejoras" or betterments
must be expressly provided, according to articles 825 and 828 of the Civil Code, and where no express
provision therefor is made in the will, the law would presume that the testator had no intention to that
effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of the
children by the second marriage; neither is there any legacy expressly made in their behalf consisting of
the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage
upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it
not for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to
divide his property equally among all his children.

Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the
widow's legal usufruct, with costs against respondents.

JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA MARLENA[2] COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,[3] dated December 23, 1993, in CA-
G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City,
and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,
855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942),
which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall
set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have
already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the
said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria
Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of
Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered
by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar
as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month
of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have
left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar
to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export
and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or
the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and
shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition
(Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they
decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my
sister."[4]

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil
Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned
heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the
defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard
of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of
the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75
piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from
sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated
demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale,
lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to
deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No.
1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving
heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of
Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the
herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived
at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver
one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered
not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla
y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and in the same manner will compliance of the
annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash
equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into
consideration the composite price of sugar during each sugar crop year, which is in the total amount of
ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on
or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."[5]

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial
delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing
as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed
as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the
non-performance of the command as mandated exaction from them simply because they are the children
of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present
complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it
is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge
Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without
prejudice.

SO ORDERED."[6]

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court;
ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of
sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's
codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant;
defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion
to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza.
However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure
the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to
enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out
of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-
appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.

SO ORDERED."[7]

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this
Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot
1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling
that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article
882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882
of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence
or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as
there was no modal institution and the testatrix intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation
to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single
and without issue, there can be no valid substitution and such testamentary provision cannot be given
any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a
definite identity or reference as to who are the "near descendants" and therefore, under Articles
843[8] and 845[9] of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals
deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the
ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that
the private respondent had a cause of action against the petitioner. The disquisition made on modal
institution was, precisely, to stress that the private respondent had a legally demandable right against the
petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment
of death of the decedent[10] and compulsory heirs are called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate parents, and the widow or widower, are
compulsory heirs.[11] Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted
heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings,
and the successional rights were transmitted to them from the moment of death of the decedent, Dr.
Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed
by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon
his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon
the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said
property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to
herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which is now being demanded by
the latter through the institution of the case at bar. Therefore, private respondent has a cause of action
against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the
testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of
sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs
first instituted. Under substitutions in general, the testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the original heir should die before him/her, renounce
the inheritance or be incapacitated to inherit, as in a simple substitution,[12] or (2) leave his/her property
to one person with the express charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.[14] In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that,
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir.[15] In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is with the near descendants
or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking;
the obligation clearly imposing upon the first heir the preservation of the property and its transmission to
the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is
no fideicommissary substitution."[16] Also, the near descendants' right to inherit from the testatrix is not
definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation
to deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not
related by first degree to the second heir.[17] In the case under scrutiny, the near descendants are not at
all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is
in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law
in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the
testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such
was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of the testator and for the return of anything he or they
may receive, together with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous
to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession
as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object
of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge
imposed by the testator upon the heir.[18] A "mode" imposes an obligation upon the heir or legatee but it
does not affect the efficacy of his rights to the succession.[19] On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to
succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not
suspend.[20] To some extent, it is similar to a resolutory condition.[21]

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended
that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred
piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that
should the obligation be not complied with, the property shall be turned over to the testatrix's near
descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in
nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of
such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the
heir should not be considered a condition unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution should be considered as modal and not
conditional.[22]
Neither is there tenability in the other contention of petitioner that the private respondent has only a
right of usufruct but not the right to seize the property itself from the instituted heir because the right to
seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of
any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into
consideration the circumstances under which it was made.[23] Such construction as will sustain and uphold
the Will in all its parts must be adopted.[24]

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of
sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise
negotiate the property involved. The Codicil further provides that in the event that the obligation to
deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to
the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of
seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation
is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest,
the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to
the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said
obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner
had become the obligation of the lessee; that petitioner is deemed to have made a substantial and
constructive compliance of his obligation through the consummated settlement between the lessee and
the private respondent, and having consummated a settlement with the petitioner, the recourse of the
private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure
of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of
his property, to take effect after his death.[25] Since the Will expresses the manner in which a person
intends how his properties be disposed, the wishes and desires of the testator must be strictly followed.
Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very
purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December
23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.

Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:

In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased,
because the lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana,
one of the witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point, being a part of
the testimony of the said Isabeo Jena:

Q. 1641 Who first signed the will?

A. 1641 I signed it first, and afterwards Aniceto and the others.

Q. 1641 Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at
the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .

Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will.

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in
his hand, in position ready to sign. I believe he signed.

Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not actually
see him sign.

Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was leaving
Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was
near the door I happened to turn my face and I saw that he had his hand with the pen resting on the will,
moving it as if for the purpose of signing.

Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of signing,
or whether he was signing

A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of
the parties to the proceedings, but the court, nevertheless, found the following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question
be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said
document as his will. They were all together, and were in the room where Jaboneta was, and were present
when he signed the document, Isabelo Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in
the presence of the testator, and in the presence of the other two persons who signed as witnesses. At
that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room. As he was leaving the
house Julio Javellana took the pen in his hand and put himself in position to sign the will as a witness, but
did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena.

We can not agree with so much of the above finding of facts as holds that the signature of Javellana was
not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the
act of affixing his signature to the will, taken together with the testimony of the remaining witnesses
which shows that Javellana did in fact there and then sign his name to the will, convinces us that the
signature was affixed in the presence of Jena. The fact that he was in the act of leaving, and that his back
was turned while a portion of the name of the witness was being written, is of no importance. He, with
the other witnesses and the testator, had assembled for the purpose of executing the testament, and
were together in the same room for that purpose, and at the moment when the witness Javellana signed
the document he was actually and physically present and in such position with relation to Javellana that
he could see everything which took place by merely casting his eyes in the proper direction, and without
any physical obstruction to prevent his doing so, therefore we are of opinion that the document was in
fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be
that the testator may have ocular evidence of the identity of the instrument subscribed by the witness
and himself, and the generally accepted tests of presence are vision and mental apprehension. (See Am.
& Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together
for the purpose of witnessing the execution of the will, and in a position to actually see the testator write,
if they choose to do so; and there are many cases which lay down the rule that the true test of vision is
not whether the testator actually saw the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the testator and the
witnesses are equally applicable in determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the ground stated in the
ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should
therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days
the record will be returned to the court form whence it came, where the proper orders will be entered in
conformance herewith. So ordered.