1

ARTICLE 774

G.R. No. 169129 March 28, 2007

SPS. VIRGILIO F. SANTOS & ESPERANZA LATI SANTOS, SPS.VICTORINO F. SANTOS, & LAGRIMAS SANTOS, ERNESTO F.
SANTOS, and TADEO F. SANTOS, Petitioners,
vs.
SPS. JOSE LUMBAO and PROSERFINA LUMBAO, Respondents.

DECISION

CHICO-NAZARIO, J.:

Herein petitioners Virgilio, Victorino, Ernesto and Tadeo, all surnamed Santos, are the legitimate and surviving heirs of the late Rita Catoc
Santos (Rita), who died on 20 October 1985. The other petitioners Esperanza Lati and Lagrimas Santos are the daughters-in-law of Rita.

Herein respondents Spouses Jose Lumbao and Proserfina Lumbao are the alleged owners of the 107-square meter lot (subject property),
which they purportedly bought from Rita during her lifetime.

The facts of the present case are as follows:

On two separate occasions during her lifetime, Rita sold to respondents Spouses Lumbao the subject property which is a part of her
share in the estate of her deceased mother, Maria Catoc (Maria), who died intestate on 19 September 1978. On the first occasion, Rita
sold 100 square meters of her inchoate share in her mother’s estate through a document denominated as "Bilihan ng Lupa," dated 17
August 1979.4 Respondents Spouses Lumbao claimed the execution of the aforesaid document was witnessed by petitioners Virgilio and
Tadeo, as shown by their signatures affixed therein. On the second occasion, an additional seven square meters was added to the land
as evidenced by a document also denominated as "Bilihan ng Lupa," dated 9 January 1981.5

After acquiring the subject property, respondents Spouses Lumbao took actual possession thereof and erected thereon a house which
they have been occupying as exclusive owners up to the present. As the exclusive owners of the subject property, respondents Spouses
Lumbao made several verbal demands upon Rita, during her lifetime, and thereafter upon herein petitioners, for them to execute the
necessary documents to effect the issuance of a separate title in favor of respondents Spouses Lumbao insofar as the subject property
is concerned. Respondents Spouses Lumbao alleged that prior to her death, Rita informed respondent Proserfina Lumbao she could not
deliver the title to the subject property because the entire property inherited by her and her co-heirs from Maria had not yet been
partitioned.

On 2 May 1986, the Spouses Lumbao claimed that petitioners, acting fraudulently and in conspiracy with one another, executed a Deed
of Extrajudicial Settlement,6 adjudicating and partitioning among themselves and the other heirs, the estate left by Maria, which included
the subject property already sold to respondents Spouses Lumbao and now covered by TCT No. 81729 7 of the Registry of Deeds of
Pasig City.

On 15 June 1992, respondents Spouses Lumbao, through counsel, sent a formal demand letter8 to petitioners but despite receipt of such
demand letter, petitioners still failed and refused to reconvey the subject property to the respondents Spouses Lumbao. Consequently,
the latter filed a Complaint for Reconveyance with Damages9 before the RTC of Pasig City.

Petitioners filed their Answer denying the allegations that the subject property had been sold to the respondents Spouses Lumbao. They
likewise denied that the Deed of Extrajudicial Settlement had been fraudulently executed because the same was duly published as
required by law. On the contrary, they prayed for the dismissal of the Complaint for lack of cause of action because respondents Spouses
Lumbao failed to comply with the Revised Katarungang Pambarangay Law under Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, which repealed Presidential Decree No. 150810 requiring first resort to barangay conciliation.

Respondents Spouses Lumbao, with leave of court, amended their Complaint because they discovered that on 16 February 1990, without
their knowledge, petitioners executed a Deed of Real Estate Mortgage in favor of Julieta S. Esplana for the sum of ₱30,000.00. The said
 2

Deed of Real Estate Mortgage was annotated at the back of TCT No. PT-81729 on 26 April 1991. Also, in answer to the allegation of the
petitioners that they failed to comply with the mandate of the Revised Katarungang Pambarangay Law, respondents Spouses Lumbao
said that the Complaint was filed directly in court in order that prescription or the Statute of Limitations may not set in.

During the trial, respondents Spouses Lumbao presented Proserfina Lumbao and Carolina Morales as their witnesses, while the
petitioners presented only the testimony of petitioner Virgilio.

The trial court rendered a Decision on 17 June 1998, the dispositive portion of which reads as follows:

Premises considered, the instant complaint is hereby denied for lack of merit.

Considering that [petitioners] have incurred expenses in order to protect their interest, [respondents spouses Lumbao] are hereby directed
to pay [petitioners], to wit: 1) the amount of ₱30,000.00 as attorney’s fees and litigation expenses, and 2) costs of the suit. 11

Aggrieved, respondents Spouses Lumbao appealed to the Court of Appeals. On 8 June 2005, the appellate court rendered a Decision,
thus:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated June 17, 1998 of the
Regional Trial Court of Pasig City, Branch 69 in Civil Case No. 62175 is hereby REVERSED and SET ASIDE. A new judgment is hereby
entered ordering [petitioners] to reconvey 107 square meters of the subject [property] covered by TCT No. PT-81729 of the Registry of
Deeds of Pasig City, Metro Manila, and to pay to [respondents spouses Lumbao] the sum of ₱30,000.00 for attorney’s fees and litigation
expenses.

No pronouncement as to costs.12

Dissatisfied, petitioners filed a Motion for Reconsideration of the aforesaid Decision but it was denied in the Resolution of the appellate
court dated 29 July 2005 for lack of merit.

Issue:

Hence, this Petition.

Petitioners ask this Court to scrutinize the evidence presented in this case, because they claim that the factual findings of the trial court
and the appellate court are conflicting. They allege that the findings of fact by the trial court revealed that petitioners Virgilio and Tadeo
did not witness the execution of the documents known as "Bilihan ng Lupa"; hence, this finding runs counter to the conclusion made by
the appellate court. And even assuming that they were witnesses to the aforesaid documents, still, respondents Spouses Lumbao were
not entitled to the reconveyance of the subject property because they were guilty of laches for their failure to assert their rights for an
unreasonable length of time. Since respondents Spouses Lumbao had slept on their rights for a period of more than 12 years reckoned
from the date of execution of the second "Bilihan ng Lupa," it would be unjust and unfair to the petitioners if the respondents will be
allowed to recover the subject property.

Petitioners allege they are in good faith in executing the Deed of Extrajudicial Settlement because even respondents Spouses Lumbao’s
witness, Carolina Morales, testified that neither petitioner Virgilio nor petitioner Tadeo was present during the execution of the "Bilihan
ng Lupa," dated 17 August 1979 and 9 January 1981. Petitioners affirm that the Deed of Extrajudicial Settlement was published in a
newspaper of general circulation to give notice to all creditors of the estate subject of partition to contest the same within the period
prescribed by law. Since no claimant appeared to interpose a claim within the period allowed by law, a title to the subject property was
then issued in favor of the petitioners; hence, they are considered as holders in good faith and therefore cannot be barred from entering
into any subsequent transactions involving the subject property.

Petitioners also contend that they are not bound by the documents denominated as "Bilihan ng Lupa" because the same were null and
void for the following reasons: 1) for being falsified documents because one of those documents made it appear that petitioners Virgilio
 3

and Tadeo were witnesses to its execution and that they appeared personally before the notary public, when in truth and in fact they did
not; 2) the identities of the properties in the "Bilihan ng Lupa," dated 17 August 1979 and 9 January 1981 in relation to the subject property
in litigation were not established by the evidence presented by the respondents Spouses Lumbao; 3) the right of the respondents Spouses
Lumbao to lay their claim over the subject property had already been barred through estoppel by laches; and 4) the respondents Spouses
Lumbao’s claim over the subject property had already prescribed.

Finally, petitioners claim that the Complaint for Reconveyance with Damages filed by respondents Spouses Lumbao was dismissible
because they failed to comply with the mandate of Presidential Decree No. 1508, as amended by Republic Act No. 7160, particularly
Section 412 of Republic Act No. 7160.

Given the foregoing, the issues presented by the petitioners may be restated as follows:

I. Whether or not the Complaint for Reconveyance with Damages filed by respondents spouses Lumbao is dismissible for their
failure to comply with the mandate of the Revised Katarungang Pambarangay Law under R.A. No. 7160.

II. Whether or not the documents known as "Bilihan ng Lupa" are valid and enforceable, thus, they can be the bases of the
respondents spouses Lumbao’s action for reconveyance with damages.

III. Whether or not herein petitioners are legally bound to comply with the "Bilihan ng Lupa" dated 17 August 1979 and 9 January
1981 and consequently, reconvey the subject property to herein respondents spouses Lumbao.

It is well-settled that in the exercise of the Supreme Court’s power of review, the court is not a trier of facts and does not normally
undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings
of fact of the Court of Appeals are conclusive and binding on the Court. 13 But, the rule is not without exceptions. There are several
recognized exceptions14 in which factual issues may be resolved by this Court. One of these exceptions is when the findings of the
appellate court are contrary to those of the trial court. This exception is present in the case at bar.

Going to the first issue presented in this case, it is the argument of the petitioners that the Complaint for Reconveyance with Damages
filed by respondents Spouses Lumbao should be dismissed for failure to comply with the barangay conciliation proceedings as mandated
by the Revised Katarungang Pambarangay Law under Republic Act No. 7160. This argument cannot be sustained.

Section 408 of the aforesaid law and Administrative Circular No. 14-9315 provide that all disputes between parties actually residing in the
same city or municipality are subject to barangay conciliation. A prior recourse thereto is a pre-condition before filing a complaint in court
or any government offices. Non-compliance with the said condition precedent could affect the sufficiency of the plaintiff’s cause of action
and make his complaint vulnerable to dismissal on ground of lack of cause of action or prematurity; but the same would not prevent a
court of competent jurisdiction from exercising its power of adjudication over the case before it, where the defendants failed to object to
such exercise of jurisdiction.16

While it is true that the present case should first be referred to the Barangay Lupon for conciliation because the parties involved herein
actually reside in the same city (Pasig City) and the dispute between them involves a real property, hence, the said dispute should have
been brought in the city in which the real property, subject matter of the controversy, is located, which happens to be the same city where
the contending parties reside. In the event that respondents Spouses Lumbao failed to comply with the said condition precedent, their
Complaint for Reconveyance with Damages can be dismissed. In this case, however, respondents Spouses Lumbao’s non-compliance
with the aforesaid condition precedent cannot be considered fatal. Although petitioners alleged in their answer that the Complaint for
Reconveyance with Damages filed by respondents spouses Lumbao should be dismissed for their failure to comply with the condition
precedent, which in effect, made the complaint prematurely instituted and the trial court acquired no jurisdiction to hear the case, yet,
they did not file a Motion to Dismiss the said complaint.

Emphasis must be given to the fact that the petitioners could have prevented the trial court from exercising jurisdiction over the case had
they filed a Motion to Dismiss. However, instead of doing so, they invoked the very same jurisdiction by filing an answer seeking an
affirmative relief from it. Worse, petitioners actively participated in the trial of the case by presenting their own witness and by cross-
examining the witnesses presented by the respondents Spouses Lumbao. It is elementary that the active participation of a party in
a case pending against him before a court is tantamount to recognition of that court’s jurisdiction and a willingness to abide
 4

by the resolution of the case which will bar said party from later on impugning the court’s jurisdiction. 17 It is also well-settled that
the non-referral of a case for barangay conciliation when so required under the law is not jurisdictional in nature and may therefore be
deemed waived if not raised seasonably in a motion to dismiss. 18 Hence, herein petitioners can no longer raise the defense of non-
compliance with the barangay conciliation proceedings to seek the dismissal of the complaint filed by the respondents Spouses Lumbao,
because they already waived the said defense when they failed to file a Motion to Dismiss.

As regards the second issue, petitioners maintain that the "Bilihan ng Lupa," dated 17 August 1979 and 9 January 1981 are null and void
for being falsified documents as it is made to appear that petitioners Virgilio and Tadeo were present in the execution of the said
documents and that the identities of the properties in those documents in relation to the subject property has not been established by the
evidence of the respondents Spouses Lumbao. Petitioners also claim that the enforceability of those documents is barred by prescription
of action and laches.

It is the petitioners’ incessant barking that the "Bilihan ng Lupa" documents dated 17 August 1979 and 9 January 1981 were falsified
because it was made to appear that petitioners Virgilio and Tadeo were present in the executions thereof, and their allegation that even
respondents Spouses Lumbao’s witness Carolina Morales proved that said petitioners were not present during the execution of the
aforementioned documents. This is specious.

Upon examination of the aforesaid documents, this Court finds that in the "Bilihan ng Lupa," dated 17 August 1979, the signatures of
petitioners Virgilio and Tadeo appeared thereon. Moreover, in petitioners’ Answer and Amended Answer to the Complaint for
Reconveyance with Damages, both petitioners Virgilio and Tadeo made an admission that indeed they acted as witnesses in the
execution of the "Bilihan ng Lupa," dated 17 August 1979.19 However, in order to avoid their obligations in the said "Bilihan ng Lupa,"
petitioner Virgilio, in his cross-examination, denied having knowledge of the sale transaction and claimed that he could not remember the
same as well as his appearance before the notary public due to the length of time that had passed. Noticeably, petitioner Virgilio did not
categorically deny having signed the "Bilihan ng Lupa," dated 17 August 1979 and in support thereof, his testimony in the cross-
examination propounded by the counsel of the respondents Spouses Lumbao is quoted hereunder:

ATTY. CHIU:

Q. Now, you said, Mr. Witness…Virgilio Santos, that you don’t know about this document which was marked as Exhibit "A" for the
[respondents spouses Lumbao]?

ATTY. BUGARING:

The question is misleading, your Honor. Counsel premised the question that he does not have any knowledge but not that he does not
know.

ATTY. CHIU:

Q. Being… you are one of the witnesses of this document? [I]s it not?

WITNESS:

A. No, sir.

Q. I am showing to you this document, there is a signature at the left hand margin of this document Virgilio Santos, will you please go
over the same and tell the court whose signature is this?

A. I don’t remember, sir, because of the length of time that had passed.

Q. But that is your signature?

A. I don’t have eyeglasses… My signature is different.

 5

Q. You never appeared before this notary public Apolinario Mangahas?

A. I don’t remember.20

As a general rule, facts alleged in a party’s pleading are deemed admissions of that party and are binding upon him, but this is not an
absolute and inflexible rule. An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence. 21 And
in spite of the presence of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence
presented.22 However, in the case at bar, as the Court of Appeals mentioned in its Decision, "[herein petitioners] had not adduced any
other evidence to override the admission made in their [A]nswer that [petitioners Virgilio and Tadeo] actually signed the [Bilihan ng Lupa
dated 17 August 1979] except that they were just misled as to the purpose of the document, x x x." 23 Virgilio’s answers were unsure and
quibbled. Hence, the general rule that the admissions made by a party in a pleading are binding and conclusive upon him applies in this
case.

On the testimony of respondents Spouses Lumbao’s witness Carolina Morales, this Court adopts the findings made by the appellate
court. Thus -

[T]he trial court gave singular focus on her reply to a question during cross-examination if the [petitioners Virgilio and Tadeo] were not
with her and the vendor [Rita] during the transaction. It must be pointed out that earlier in the direct examination of said witness, she
confirmed that [respondents spouses Lumbao] actually bought the lot from [Rita] ("nagkabilihan"). Said witness positively identified and
confirmed the two (2) documents evidencing the sale in favor of [respondents spouse Lumbao]. Thus, her subsequent statement that the
[petitioners Virgilio and Tadeo] were not with them during the transaction does not automatically imply that [petitioners Virgilio and Tadeo]
did not at any time sign as witnesses as to the deed of sale attesting to their mother’s voluntary act of selling a portion of her share in her
deceased mother’s property. The rule is that testimony of a witness must be considered and calibrated in its entirety and not by truncated
portions thereof or isolated passages therein. 24

Furthermore, both "Bilihan ng Lupa" documents dated 17 August 1979 and 9 January 1981 were duly notarized before a notary public.
It is well-settled that a document acknowledged before a notary public is a public document 25 that enjoys the presumption of regularity. It
is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution.26 To
overcome this presumption, there must be presented evidence that is clear and convincing. Absent such evidence, the presumption must
be upheld.27 In addition, one who denies the due execution of a deed where one’s signature appears has the burden of proving that
contrary to the recital in the jurat, one never appeared before the notary public and acknowledged the deed to be a voluntary act.
Nonetheless, in the present case petitioners’ denials without clear and convincing evidence to support their claim of fraud and falsity were
not sufficient to overthrow the above-mentioned presumption; hence, the authenticity, due execution and the truth of the facts stated in
the aforesaid "Bilihan ng Lupa" are upheld.

The defense of petitioners that the identities of the properties described in the "Bilihan ng Lupa," dated 17 August 1979 and 9 January
1981 in relation to the subject property were not established by respondents Spouses Lumbao’s evidence is likewise not acceptable.

It is noteworthy that at the time of the execution of the documents denominated as "Bilihan ng Lupa," the entire property owned by Maria,
the mother of Rita, was not yet divided among her and her co-heirs and so the description of the entire estate is the only description that
can be placed in the "Bilihan ng Lupa, dated 17 August 1979 and 9 January 1981" because the exact metes and bounds of the subject
property sold to respondents Spouses Lumbao could not be possibly determined at that time. Nevertheless, that does not make the
contract of sale between Rita and respondents Spouses Lumbao invalid because both the law and jurisprudence have categorically held
that even while an estate remains undivided, co-owners have each full ownership of their respective aliquots or undivided shares and
may therefore alienate, assign or mortgage them. 28 The co-owner, however, has no right to sell or alienate a specific or determinate part
of the thing owned in common, because such right over the thing is represented by an aliquot or ideal portion without any physical
division. In any case, the mere fact that the deed purports to transfer a concrete portion does not per se render the sale void. The sale is
valid, but only with respect to the aliquot share of the selling co-owner. Furthermore, the sale is subject to the results of the partition upon
the termination of the co-ownership.29

In the case at bar, when the estate left by Maria had been partitioned on 2 May 1986 by virtue of a Deed of Extrajudicial
Settlement, the 107- square meter lot sold by the mother of the petitioners to respondents Spouses Lumbao should be deducted
from the total lot, inherited by them in representation of their deceased mother, which in this case measures 467 square meters.
 6

The 107-square meter lot already sold to respondents Spouses Lumbao can no longer be inherited by the petitioners because
the same was no longer part of their inheritance as it was already sold during the lifetime of their mother.

Likewise, the fact that the property mentioned in the two "Bilihan ng Lupa" documents was described as "a portion of a parcel of land
covered in Tax Declarations No. A-018-01674," while the subject matter of the Deed of Extrajudicial Settlement was the property
described in Transfer Certificate of Title (TCT) No. 3216 of the Registry of Deeds of the Province of Rizal in the name of Maria is of no
moment because in the "Bilihan ng Lupa," dated 17 August 1979 and 9 January 1981, it is clear that there was only one estate left by
Maria upon her death. And this fact was not refuted by the petitioners. Besides, the property described in Tax Declaration No. A-018-
01674 and the property mentioned in TCT No. 3216 are both located in Barrio Rosario, Municipality of Pasig, Province of Rizal, and
almost have the same boundaries. It is, thus, safe to state that the property mentioned in Tax Declaration No. A-018-01674 and in TCT
No. 3216 are one and the same.

The defense of prescription of action and laches is likewise unjustifiable. In an action for reconveyance, the decree of registration is
respected as incontrovertible. What is sought instead is the transfer of the property or its title which has been wrongfully or erroneously
registered in another person’s name to its rightful or legal owner, or to the one with a better right. It is, indeed, true that the right to seek
reconveyance of registered property is not absolute because it is subject to extinctive prescription. However, when the plaintiff is in
possession of the land to be reconveyed, prescription cannot set in. Such an exception is based on the theory that registration
proceedings could not be used as a shield for fraud or for enriching a person at the expense of another. 30

In the case at bar, the right of the respondents Spouses Lumbao to seek reconveyance does not prescribe because the latter have been
and are still in actual possession and occupation as owners of the property sought to be reconveyed, which fact has not been refuted nor
denied by the petitioners. Furthermore, respondents Spouses Lumbao cannot be held guilty of laches because from the very start that
they bought the 107-square meter lot from the mother of the petitioners, they have constantly asked for the transfer of the certificate of
title into their names but Rita, during her lifetime, and the petitioners, after the death of Rita, failed to do so on the flimsy excuse that the
lot had not been partitioned yet. Inexplicably, after the partition of the entire estate of Maria, petitioners still included the 107-square meter
lot in their inheritance which they divided among themselves despite their knowledge of the contracts of sale between their mother and
the respondents Spouses Lumbao.

Under the above premises, this Court holds that the "Bilihan ng Lupa" documents dated 17 August 1979 and 9 January 1981 are valid
and enforceable and can be made the basis of the respondents Spouses Lumbao’s action for reconveyance. The failure of respondents
Spouses Lumbao to have the said documents registered does not affect its validity and enforceability. It must be remembered that
registration is not a requirement for validity of the contract as between the parties, for the effect of registration serves chiefly to bind third
persons. The principal purpose of registration is merely to notify other persons not parties to a contract that a transaction involving the
property had been entered into. Where the party has knowledge of a prior existing interest which is unregistered at the time he acquired
a right to the same land, his knowledge of that prior unregistered interest has the effect of registration as to him. 31 Hence, the "Bilihan ng
Lupa" documents dated 17 August 1979 and 9 January 1981, being valid and enforceable, herein petitioners are bound to comply with
their provisions. In short, such documents are absolutely valid between and among the parties thereto.

Finally, the general rule that heirs are bound by contracts entered into by their predecessors-in-interest applies in the present
case. Article 131132 of the NCC is the basis of this rule. It is clear from the said provision that whatever rights and obligations the
decedent have over the property were transmitted to the heirs by way of succession, a mode of acquiring the property, rights and
obligations of the decedent to the extent of the value of the inheritance of the heirs. 33 Thus, the heirs cannot escape the legal consequence
of a transaction entered into by their predecessor-in-interest because they have inherited the property subject to the liability affecting
their common ancestor. Being heirs, there is privity of interest between them and their deceased mother. They only succeed to what
rights their mother had and what is valid and binding against her is also valid and binding as against them. The death of a party
does not excuse nonperformance of a contract which involves a property right and the rights and obligations thereunder pass
to the personal representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the
other party has a property interest in the subject matter of the contract. 34

In the end, despite the death of the petitioners’ mother, they are still bound to comply with the provisions of the "Bilihan ng Lupa," dated
17 August 1979 and 9 January 1981. Consequently, they must reconvey to herein respondents Spouses Lumbao the 107-square meter
lot which they bought from Rita, petitioners’ mother. And as correctly ruled by the appellate court, petitioners must pay respondents
Spouses Lumbao attorney’s fees and litigation expenses for having been compelled to litigate and incur expenses to protect their
interest.35 On this matter, we do not find reasons to reverse the said findings.
 7

WHEREFORE, premises considered, the instant Petition is hereby DENIED. The Decision and Resolution of the Court of Appeals dated
8 June 2005 and 29 July 2005, respectively, are hereby AFFIRMED. Herein petitioners are ordered to reconvey to respondents Spouses
Lumbao the subject property and to pay the latter attorney’s fees and litigation expenses. Costs against petitioners.

SO ORDERED.

G.R. No. 149926 February 23, 2005

UNION BANK OF THE PHILIPPINES, petitioner,

vs.
EDMUND SANTIBAÑEZ and FLORENCE SANTIBAÑEZ ARIOLA, respondents.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court which seeks the reversal of the Decision1 of
the Court of Appeals dated May 30, 2001 in CA-G.R. CV No. 48831 affirming the dismissal2 of the petitioner’s complaint in Civil Case No.
18909 by the Regional Trial Court (RTC) of Makati City, Branch 63.

The antecedent facts are as follows:

On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M. Santibañez entered into a loan agreement 3 in the
amount of ₱128,000.00. The amount was intended for the payment of the purchase price of one (1) unit Ford 6600 Agricultural All-
Purpose Diesel Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory note in favor of the FCCC, the principal
sum payable in five equal annual amortizations of ₱43,745.96 due on May 31, 1981 and every May 31st thereafter up to May 31, 1985.

On December 13, 1980, the FCCC and Efraim entered into another loan agreement,4 this time in the amount of ₱123,156.00. It was
intended to pay the balance of the purchase price of another unit of Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories,
and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his son, Edmund, executed a promissory note for the said amount
in favor of the FCCC. Aside from such promissory note, they also signed a Continuing Guaranty Agreement 5 for the loan dated December
13, 1980.

Sometime in February 1981, Efraim died, leaving a holographic will.6 Subsequently in March 1981, testate proceedings commenced
before the RTC of Iloilo City, Branch 7, docketed as Special Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs, was
appointed as the special administrator of the estate of the decedent.7 During the pendency of the testate proceedings, the surviving heirs,
Edmund and his sister Florence Santibañez Ariola, executed a Joint Agreement 8 dated July 22, 1981, wherein they agreed to divide
between themselves and take possession of the three (3) tractors; that is, two (2) tractors for Edmund and one (1) tractor for Florence.
Each of them was to assume the indebtedness of their late father to FCCC, corresponding to the tractor respectively taken by them.

On August 20, 1981, a Deed of Assignment with Assumption of Liabilities 9 was executed by and between FCCC and Union Savings and
Mortgage Bank, wherein the FCCC as the assignor, among others, assigned all its assets and liabilities to Union Savings and Mortgage
Bank.

Demand letters10 for the settlement of his account were sent by petitioner Union Bank of the Philippines (UBP) to Edmund, but the latter
failed to heed the same and refused to pay. Thus, on February 5, 1988, the petitioner filed a Complaint 11 for sum of money against the
heirs of Efraim Santibañez, Edmund and Florence, before the RTC of Makati City, Branch 150, docketed as Civil Case No. 18909.
Summonses were issued against both, but the one intended for Edmund was not served since he was in the United States and there
was no information on his address or the date of his return to the Philippines.12 Accordingly, the complaint was narrowed down to
respondent Florence S. Ariola.
 8

On December 7, 1988, respondent Florence S. Ariola filed her Answer13 and alleged that the loan documents did not bind her since she
was not a party thereto. Considering that the joint agreement signed by her and her brother Edmund was not approved by the probate
court, it was null and void; hence, she was not liable to the petitioner under the joint agreement.

On January 29, 1990, the case was unloaded and re-raffled to the RTC of Makati City, Branch 63. 14 Consequently, trial on the merits
ensued and a decision was subsequently rendered by the court dismissing the complaint for lack of merit. The decretal portion of the
RTC decision reads:

WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit. 15

The trial court found that the claim of the petitioner should have been filed with the probate court before which the testate estate of the
late Efraim Santibañez was pending, as the sum of money being claimed was an obligation incurred by the said decedent. The trial court
also found that the Joint Agreement apparently executed by his heirs, Edmund and Florence, on July 22, 1981, was, in effect, a partition
of the estate of the decedent. However, the said agreement was void, considering that it had not been approved by the probate court,
and that there can be no valid partition until after the will has been probated. The trial court further declared that petitioner failed to prove
that it was the now defunct Union Savings and Mortgage Bank to which the FCCC had assigned its assets and liabilities. The court also
agreed to the contention of respondent Florence S. Ariola that the list of assets and liabilities of the FCCC assigned to Union Savings
and Mortgage Bank did not clearly refer to the decedent’s account. Ruling that the joint agreement executed by the heirs was null and
void, the trial court held that the petitioner’s cause of action against respondent Florence S. Ariola must necessarily fail.

The petitioner appealed from the RTC decision and elevated its case to the Court of Appeals (CA), assigning the following as errors of
the trial court:

1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE
PROBATE COURT.

2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS UNTIL
AFTER THE WILL HAS BEEN PROBATED.

3. THE COURT A QUO ERRED IN NOT FINDING THAT THE DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM
RE-LITIGATED IN THE ESTATE PROCEEDING.16

The petitioner asserted before the CA that the obligation of the deceased had passed to his legitimate children and heirs, in this case,
Edmund and Florence; the unconditional signing of the joint agreement marked as Exhibit "A" estopped respondent Florence S. Ariola,
and that she cannot deny her liability under the said document; as the agreement had been signed by both heirs in their personal capacity,
it was no longer necessary to present the same before the probate court for approval; the property partitioned in the agreement was not
one of those enumerated in the holographic will made by the deceased; and the active participation of the heirs, particularly respondent
Florence S. Ariola, in the present ordinary civil action was tantamount to a waiver to re-litigate the claim in the estate proceedings.

On the other hand, respondent Florence S. Ariola maintained that the money claim of the petitioner should have been presented before
the probate court.17

The appellate court found that the appeal was not meritorious and held that the petitioner should have filed its claim with the probate
court as provided under Sections 1 and 5, Rule 86 of the Rules of Court. It further held that the partition made in the agreement was null
and void, since no valid partition may be had until after the will has been probated. According to the CA, page 2, paragraph (e) of the
holographic will covered the subject properties (tractors) in generic terms when the deceased referred to them as "all other properties."
Moreover, the active participation of respondent Florence S. Ariola in the case did not amount to a waiver. Thus, the CA affirmed the
RTC decision, viz.:

WHEREFORE, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 63, is hereby
AFFIRMED in toto.

SO ORDERED.18
 9

In the present recourse, the petitioner ascribes the following errors to the CA:

I.

THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE JOINT AGREEMENT SHOULD BE APPROVED BY THE
PROBATE COURT.

II.

THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS OF THE LATE
EFRAIM SANTIBAÑEZ UNTIL AFTER THE WILL HAS BEEN PROBATED.

III.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM
RE-LITIGATED IN THE ESTATE PROCEEDING.

IV.

RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM
SANTIBAÑEZ ON THE STRENGTH OF THE CONTINUING GUARANTY AGREEMENT EXECUTED IN FAVOR OF PETITIONER-
APPELLANT UNION BANK.

V.

THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF ₱128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT OF
₱123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT THE RESPONDENTS BOUND THEMSELVES JOINTLY AND
SEVERALLY LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAÑEZ IN FAVOR OF PETITIONER UNION BANK. 19

The petitioner claims that the obligations of the deceased were transmitted to the heirs as provided in Article 774 of the Civil Code; there
was thus no need for the probate court to approve the joint agreement where the heirs partitioned the tractors owned by the deceased
and assumed the obligations related thereto. Since respondent Florence S. Ariola signed the joint agreement without any condition, she
is now estopped from asserting any position contrary thereto. The petitioner also points out that the holographic will of the deceased did
not include nor mention any of the tractors subject of the complaint, and, as such was beyond the ambit of the said will. The active
participation and resistance of respondent Florence S. Ariola in the ordinary civil action against the petitioner’s claim amounts to a waiver
of the right to have the claim presented in the probate proceedings, and to allow any one of the heirs who executed the joint agreement
to escape liability to pay the value of the tractors under consideration would be equivalent to allowing the said heirs to enrich themselves
to the damage and prejudice of the petitioner.

The petitioner, likewise, avers that the decisions of both the trial and appellate courts failed to consider the fact that respondent Florence
S. Ariola and her brother Edmund executed loan documents, all establishing the vinculum juris or the legal bond between the late Efraim
Santibañez and his heirs to be in the nature of a solidary obligation. Furthermore, the Promissory Notes dated May 31, 1980 and
December 13, 1980 executed by the late Efraim Santibañez, together with his heirs, Edmund and respondent Florence, made the
obligation solidary as far as the said heirs are concerned. The petitioner also proffers that, considering the express provisions of the
continuing guaranty agreement and the promissory notes executed by the named respondents, the latter must be held liable jointly and
severally liable thereon. Thus, there was no need for the petitioner to file its money claim before the probate court. Finally, the petitioner
stresses that both surviving heirs are being sued in their respective personal capacities, not as heirs of the deceased.

In her comment to the petition, respondent Florence S. Ariola maintains that the petitioner is trying to recover a sum of money from the
deceased Efraim Santibañez; thus the claim should have been filed with the probate court. She points out that at the time of the execution
of the joint agreement there was already an existing probate proceedings of which the petitioner knew about. However, to avoid a claim
in the probate court which might delay payment of the obligation, the petitioner opted to require them to execute the said
agreement.1a\^/phi1.net
 10

According to the respondent, the trial court and the CA did not err in declaring that the agreement was null and void. She asserts that
even if the agreement was voluntarily executed by her and her brother Edmund, it should still have been subjected to the approval of the
court as it may prejudice the estate, the heirs or third parties. Furthermore, she had not waived any rights, as she even stated in her
answer in the court a quo that the claim should be filed with the probate court. Thus, the petitioner could not invoke or claim that she is
in estoppel.

Respondent Florence S. Ariola further asserts that she had not signed any continuing guaranty agreement, nor was there any document
presented as evidence to show that she had caused herself to be bound by the obligation of her late father.

The petition is bereft of merit.

The Court is posed to resolve the following issues:

a) whether or not the partition in the Agreement executed by the heirs is valid;

b) whether or not the heirs’ assumption of the indebtedness of the deceased is valid; and

c) whether the petitioner can hold the heirs liable on the obligation of the deceased.

At the outset, well-settled is the rule that a probate court has the jurisdiction to determine all the properties of the deceased, to determine
whether they should or should not be included in the inventory or list of properties to be administered. 20 The said court is primarily
concerned with the administration, liquidation and distribution of the estate.21

In our jurisdiction, the rule is that there can be no valid partition among the heirs until after the will has been probated:

In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate
of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory. The authentication of a will decides no other question than such as touch upon
the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will. 22

This, of course, presupposes that the properties to be partitioned are the same properties embraced in the will.23 In the present case, the
deceased, Efraim Santibañez, left a holographic will24 which contained, inter alia, the provision which reads as follows:

(e) All other properties, real or personal, which I own and may be discovered later after my demise, shall be distributed in the proportion
indicated in the immediately preceding paragraph in favor of Edmund and Florence, my children.

We agree with the appellate court that the above-quoted is an all-encompassing provision embracing all the properties left by the
decedent which might have escaped his mind at that time he was making his will, and other properties he may acquire thereafter. Included
therein are the three (3) subject tractors. This being so, any partition involving the said tractors among the heirs is not valid. The joint
agreement25 executed by Edmund and Florence, partitioning the tractors among themselves, is invalid, specially so since at the time of
its execution, there was already a pending proceeding for the probate of their late father’s holographic will covering the said tractors.

It must be stressed that the probate proceeding had already acquired jurisdiction over all the properties of the deceased, including the
three (3) tractors. To dispose of them in any way without the probate court’s approval is tantamount to divesting it with jurisdiction which
the Court cannot allow.26 Every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. 27 Thus, in executing any joint
agreement which appears to be in the nature of an extra-judicial partition, as in the case at bar, court approval is imperative, and the
heirs cannot just divest the court of its jurisdiction over that part of the estate. Moreover, it is within the jurisdiction of the probate court to
determine the identity of the heirs of the decedent.28 In the instant case, there is no showing that the signatories in the joint agreement
were the only heirs of the decedent. When it was executed, the probate of the will was still pending before the court and the latter had
yet to determine who the heirs of the decedent were. Thus, for Edmund and respondent Florence S. Ariola to adjudicate unto themselves
the three (3) tractors was a premature act, and prejudicial to the other possible heirs and creditors who may have a valid claim against
the estate of the deceased.
 11

The question that now comes to fore is whether the heirs’ assumption of the indebtedness of the decedent is binding. We rule in the
negative. Perusing the joint agreement, it provides that the heirs as parties thereto "have agreed to divide between themselves and take
possession and use the above-described chattel and each of them to assume the indebtedness corresponding to the chattel taken as
herein after stated which is in favor of First Countryside Credit Corp."29 The assumption of liability was conditioned upon the happening
of an event, that is, that each heir shall take possession and use of their respective share under the agreement. It was made dependent
on the validity of the partition, and that they were to assume the indebtedness corresponding to the chattel that they were each to receive.
The partition being invalid as earlier discussed, the heirs in effect did not receive any such tractor. It follows then that the assumption of
liability cannot be given any force and effect.

The Court notes that the loan was contracted by the decedent.l^vvphi1.net The petitioner, purportedly a creditor of the late Efraim
Santibañez, should have thus filed its money claim with the probate court in accordance with Section 5, Rule 86 of the Revised Rules of
Court, which provides:

Section 5. Claims which must be filed under the notice. If not filed barred; exceptions. — All claims for money against the decedent,
arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses for the last
sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring
against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment
is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the
claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved
at their present value.

The filing of a money claim against the decedent’s estate in the probate court is mandatory. 30 As we held in the vintage case of Py Eng
Chong v. Herrera:31

… This requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees,
legatees, or heirs. `The law strictly requires the prompt presentation and disposition of the claims against the decedent's estate in order
to settle the affairs of the estate as soon as possible, pay off its debts and distribute the residue. 32

Perusing the records of the case, nothing therein could hold private respondent Florence S. Ariola accountable for any liability incurred
by her late father. The documentary evidence presented, particularly the promissory notes and the continuing guaranty agreement, were
executed and signed only by the late Efraim Santibañez and his son Edmund. As the petitioner failed to file its money claim with the
probate court, at most, it may only go after Edmund as co-maker of the decedent under the said promissory notes and continuing
guaranty, of course, subject to any defenses Edmund may have as against the petitioner. As the court had not acquired jurisdiction over
the person of Edmund, we find it unnecessary to delve into the matter further.

We agree with the finding of the trial court that the petitioner had not sufficiently shown that it is the successor-in-interest of the Union
Savings and Mortgage Bank to which the FCCC assigned its assets and liabilities. 33 The petitioner in its complaint alleged that "by virtue
of the Deed of Assignment dated August 20, 1981 executed by and between First Countryside Credit Corporation and Union Bank of the
Philippines…"34 However, the documentary evidence35 clearly reflects that the parties in the deed of assignment with assumption of
liabilities were the FCCC, and the Union Savings and Mortgage Bank, with the conformity of Bancom Philippine Holdings, Inc. Nowhere
can the petitioner’s participation therein as a party be found. Furthermore, no documentary or testimonial evidence was presented during
trial to show that Union Savings and Mortgage Bank is now, in fact, petitioner Union Bank of the Philippines. As the trial court declared
in its decision:

… [T]he court also finds merit to the contention of defendant that plaintiff failed to prove or did not present evidence to prove that Union
Savings and Mortgage Bank is now the Union Bank of the Philippines. Judicial notice does not apply here. "The power to take judicial
notice is to [be] exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt
upon the subject should be promptly resolved in the negative." (Republic vs. Court of Appeals, 107 SCRA 504). 36
 12

This being the case, the petitioner’s personality to file the complaint is wanting. Consequently, it failed to establish its cause of action.
Thus, the trial court did not err in dismissing the complaint, and the CA in affirming the same.

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The assailed Court of Appeals Decision is AFFIRMED. No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

ARTICLE 777

G.R. No. 166236 : July 29, 2010

NOLI ALFONSO and ERLINDA FUNDIALAN, Petitioners, v. SPOUSES HENRY and LIWANAG ANDRES, Respondents.

DECISION

DEL CASTILLO, J.:

Technical rules may be relaxed only for the furtherance of justice and to benefit the deserving.

In the present petition for review, petitioners assail the August 10, 2004 Resolution1cralaw of the Court of Appeals (CA) in CA-G.R. CV.
No. 78362, which dismissed the appeal before it for failure of petitioners to file their brief within the extended reglementary period.

Factual Antecedents

The present case stemmed from a complaint for accion publiciana with damages filed by respondent spouses Henry and Liwanag Andres
against Noli Alfonso and spouses Reynaldo and Erlinda Fundialan before the Regional Trial Court (RTC), Branch 77, San Mateo, Rizal.

On July 8, 1997, the RTC rendered a Decision2cralaw in favor of respondents. The dispositive portion of the Decision states:

WHEREFORE, premises considered judgment is rendered in favor of the plaintiffs and against the defendants and all persons claiming
rights under them who are ordered:

1. to vacate the premises located at 236 General Luna St., Dulongbayan 11, San Mateo, Rizal;

2. to jointly and severally pay the sum [of] P100.00 as reasonable compensation for the use of said premises commencing from 04
September 1995; [and]

3. to jointly and severally pay the sum of P10,000.00 as and for attorney's fees and to pay the cost of suit.

SO ORDERED.3cralaw

Petitioners,4cralaw thus, appealed to the CA.

Proceedings Before the Court of Appeals

On November 5, 2003, petitioners' previous counsel was notified by the CA to file appellants' brief within 45 days from receipt of the
notice. The original 45-day period expired on December 21, 2003. But before then, on December 8, 2003, petitioners' former counsel
filed a Motion to Withdraw Appearance. Petitioners consented to the withdrawal.
 13

On December 19, 2003, petitioners themselves moved for an extension of 30 days or until January 21, 2004 within which to file their
appellants' brief. Then on March 3, 2004, petitioners themselves again moved for a fresh period of 45 days from March 3, 2004 or until
April 18, 2004 within which to file their appellants' brief.

On March 17, 2004, the CA issued a Resolution: a) noting the withdrawal of appearance of petitioners' former counsel; b) requiring
petitioners to cause the Entry of Appearance of their new counsel; and c) granting petitioners' motions for extension of time to file their
brief for a period totaling 75 days, commencing from December 21, 2003 or until March 5, 2004.

Petitioners themselves received a copy of this Resolution only on April 6, 2004. By that time, the extension to file appellants' brief had
already long expired.

On April 14, 2004, the Public Attorney's Office (PAO), having been approached by petitioners, entered6cralaw its appearance as new
counsel for petitioners. However, on August 10, 2004, the CA issued the assailed Resolution dismissing petitioners' appeal, to wit:

FOR failure of defendants-appellants to file their brief within the extended reglementary period which expired on March 5, 2004 as per
Judicial Records Division report dated July 26, 2004, the appeal is hereby DISMISSED pursuant to Sec. 1 (e), Rule 50 of the 1997 Rules
of Civil Procedure.

SO ORDERED.

On September 6, 2004, the PAO filed their Motion for Reconsideration7cralaw which requested for a fresh period of 45 days from
September 7, 2004 or until October 22, 2004 within which to file appellants' brief. On October 21, 2004, the brief 8cralaw was filed by the
PAO.

On November 26, 2004, the CA issued a Resolution which denied petitioners' motion for reconsideration. Hence, this petition for review.

Issues

Petitioners raise the following issues:

THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING PETITIONERS' APPEAL FOR FAILURE TO FILE THEIR
DEFENDANTS-APPELLANTS' BRIEF, DESPITE THE ATTENDANCE OF PECULIAR FACTS AND CIRCUMSTANCES
SURROUNDING SUCH FAILURE, LIKE THE GROSS AND RECKLESS NEGLIGENCE OF THEIR FORMER COUNSEL, THE
ABSENCE OF MANIFEST INTENT TO CAUSE DELAY, THE SERIOUS QUESTIONS OF LAW POSED FOR RESOLUTION BEFORE
THE APPELLATE COURT, AND THE FACT THAT THE APPELLANTS' BRIEF HAD ALREADY BEEN FILED WITH THE COURT OF
APPEALS AND ALREADY FORMED PART OF THE RECORDS OF THE CASE.

II

THE DISMISSAL OF PETITIONERS' APPEAL BY THE HONORABLE COURT OF APPEALS IS HIGHLY UNJUSTIFIED, INIQUITOUS
AND UNCONSCIONABLE BECAUSE IT OVERLOOKED AND/OR DISREGARDED THE MERITS OF PETITIONERS' CASE WHICH
INVOLVES A DEPRIVATION OF THEIR PROPERTY RIGHTS. 10

Petitioners' Arguments

Petitioners contend that their failure to file their appellants' brief within the required period was due to their indigency and poverty. They
submit that there is no justification for the dismissal of their appeal specially since the PAO had just entered its appearance as new
counsel for petitioners as directed by the CA, and had as yet no opportunity to prepare the brief. They contend that appeal should be
allowed since the brief had anyway already been prepared and filed by the PAO before it sought reconsideration of the dismissal of the
appeal and is already part of the records. They contend that the late filing of the brief should be excused under the circumstances so that
the case may be decided on the merits and not merely on technicalities.
 14

Respondents' Arguments

On the other hand, respondents contend that failure to file appellants' brief on time is one instance where the CA may dismiss an appeal.
In the present case, they contend that the CA exercised sound discretion when it dismissed the appeal upon petitioners' failure to file
their appellants' brief within the extended period of 75 days after the original 45-day period expired.

Our Ruling

The petition has no merit.

Failure to file Brief On Time

Rule 50 of the Rules of Court states:

Section 1. Grounds for dismissal of appeal.-An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

xxxx

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these
Rules;

Petitioners plead for the suspension of the rules and cite a number of cases where the Court excused the late filing of a notice of appeal
as well as the late filing of the appellant's brief. They further cite Development Bank of the Philippines v. Court of Appeals11cralaw where
the late filing of the appellant's brief was excused because the Court found the case impressed with public interest.

The cases cited by petitioners are not in point. In the present civil case which involves the failure to file the appellants' brief on time, there
is no showing of any public interest involved. Neither is there a showing that an injustice will result due to the application of technical
rules.

Poverty cannot be used as an excuse to justify petitioners' complacency in allowing months to pass by before exerting the required effort
to find a replacement lawyer. Poverty is not a justification for delaying a case. Both parties have a right to a speedy resolution of their
case. Not only petitioners, but also the respondents, have a right to have the case finally settled without delay.

Furthermore, the failure to file a brief on time was due primarily to petitioners' unwise choices and not really due to poverty. Petitioners
were able to get a lawyer to represent them despite their poverty. They were able to get two other lawyers after they consented to the
withdrawal of their first lawyer. But they hired their subsequent lawyers too late.

It must be pointed out that petitioners had a choice of whether to continue the services of their original lawyer or consent to let him go.
They could also have requested the said lawyer to file the required appellants' brief before consenting to his withdrawal from the case.
But they did neither of these. Then, not having done so, they delayed in engaging their replacement lawyer. Their poor choices and lack
of sufficient diligence, not poverty, are the main culprits for the situation they now find themselves in. It would not be fair to pass on the
bad consequences of their choices to respondents. Petitioners' low regard for the rules or nonchalance toward procedural requirements,
which they camouflage with the cloak of poverty, has in fact contributed much to the delay, and hence frustration of justice, in the present
case.

No compelling reason to disregard technicalities

Petitioners beg us to disregard technicalities because they claim that on the merits their case is strong. A study of the records fails to so
convince us.
 15

Petitioners theorize that publication of the deed of extrajudicial settlement of the estate of Marcelino Alfonso is required before their father,
Jose Alfonso (Jose) could validly transfer the subject property. We are not convinced. In Alejandrino v. Court of Appeals, the Court upheld
the effectivity of a deed of extrajudicial settlement that was neither notarized nor published.

Significantly, the title of the property owned by a person who dies intestate passes at once to his heirs. Such transmission is subject to
the claims of administration and the property may be taken from the heirs for the purpose of paying debts and expenses, but this does
not prevent an immediate passage of the title, upon the death of the intestate, from himself to his heirs. The deed of extrajudicial
settlement executed by Filomena Santos Vda. de Alfonso and Jose evidences their intention to partition the inherited property. It
delineated what portion of the inherited property would belong to whom.

The sale to respondents was made after the execution of the deed of extrajudicial settlement of the estate. The extrajudicial settlement
of estate, even though not published, being deemed a partition14cralaw of the inherited property, Jose could validly transfer ownership
over the specific portion of the property that was assigned to him.15cralaw

The records show that Jose did in fact sell to respondents the subject property. The deed of sale executed by Jose in favor of the
respondents being a public document, is entitled to full faith and credit in the absence of competent evidence that its execution was
tainted with defects and irregularities that would warrant a declaration of nullity. As found by the RTC, petitioners failed to prove any
defect or irregularities in the execution of the deed of sale. They failed to prove by strong evidence, the alleged lack of consent of Jose
to the sale of the subject real property. As found by the RTC, although Jose was suffering from partial paralysis and could no longer sign
his name, there is no showing that his mental faculties were affected in such a way as to negate the existence of his valid consent to the
sale, as manifested by his thumbmark on the deed of sale. The records sufficiently show that he was capable of boarding a tricycle to go
on trips by himself. Sufficient testimonial evidence in fact shows that Jose asked respondents to buy the subject property so that it could
be taken out from the bank to which it was mortgaged. This fact evinces that Jose's mental faculties functioned intelligently.

In view of the foregoing, we find no compelling reason to overturn the assailed CA resolution. We find no injustice in the dismissal of the
appeal by the CA. Justice dictates that this case be put to rest already so that the respondents may not be deprived of their rights.

WHEREFORE, the petition is DENIED. The August 10, 2004 Resolution of the Court of Appeals in CA-G.R. CV. No. 78362 is AFFIRMED.

SO ORDERED.

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.

REYES, J.B.L., J.:

 16

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of the testate
estate of Francisco de Borja,1 from the approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special
Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of
First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O.
Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in
its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as
the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa
Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of
her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed
co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa
Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-
suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa
Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963,2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely,
Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco
de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and
conditions of the compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of
the Testate Estate of Josefa Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations,
controversies, claims, counterclaims, etc., between them in connection with the administration, settlement, partition,
adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco,
first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and
execute this agreement under the following terms and conditions:
 17

1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently
under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described
as follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la
Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con
los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of
Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his share in
the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja and
this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-
Rizal, respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last
Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or
otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the
proceeds of the sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late
Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5 share of the Estate and Inheritance
taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by
the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph
2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco
de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. de de
Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766,500.00) and issue
in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrants, who, in turn,
will issue the corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and
for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce, withdraw, waive,
remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or
sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now
have or may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc.
No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case
filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, absolutely
and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially,
directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of the estates
of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de
de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of
Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to
the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in her possession
and said heir Jose de Borja shall issue in turn the corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph
1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the Jalajala property
 18

"Poblacion", otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT
EFFECT THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th
of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal,
in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No.
832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal
Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of
disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless,
attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will
of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate
is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the
law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly
conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the
decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives
..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into,
on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial
settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in
accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner,
the probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the
agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of
P800,000 payable to Tasiana Ongsingco —

shall be considered as full — complete payment — settlement of her hereditary share in the estate of the late Francisco
de Borja as well as the estate of Josefa Tangco, ... and to any properties bequeathed or devised in her favor by the
late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed
to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no
attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of
the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the
estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary
share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in
interest (Civil Code of the Philippines, Art. 777)3 there is no legal bar to a successor (with requisite contracting capacity) disposing
of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the
subsequent liquidation of the estate.4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated
to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of
them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court,
 19

gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity
of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory
heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest
existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana
Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection
of the contract, even without previous authority of the Court to enter into the same. The only difference between an extrajudicial
compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037
of the Civil Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution
except in compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance,
the same was intended to have a resolutory period of 60 days for its effectiveness. In support of such contention, it is
averred that such a limit was expressly stipulated in an agreement in similar terms entered into by said Ongsingco with
the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the
consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the
following clause:

III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and
upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco
de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property
mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners within the period
of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and
that the same appears not to have been finalized, since it bears no date, the day being left blank "this — day of October 1963"; and while
signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total
consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde
all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the
duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede
the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter
(Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover manifest that the
stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's
co-heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be
sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold
until authorized by the Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a
term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja
(Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she
was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her
late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the
Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:
 20

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs
may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so
within the period of one month from the time they were notified in writing of the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her
status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with
Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that
would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of
the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964,
in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963
(Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of
21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that Jose de Borja himself, in a
motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise
agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record
discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the
same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded
by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was
natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking
judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That
the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36
of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion
of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory
accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its
approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary
resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing
power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in
receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex
"A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency,
what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be
a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the
present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco
de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his second spouse,
Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of
Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the presumption in favor of its
conjugal character established by Article 160 of the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of
the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana
 21

Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying
reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its resolution is
still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo
de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528
of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned
among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala
proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja
O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal,
pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in
the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco
(Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while
in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa
Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil
Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it
pertains exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut
the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja,
and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this
Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership
De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that,
as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance
of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid
(Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an
inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de
Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special
Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed
the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which
are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the
Court of First Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de
Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal
presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal
property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the
sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal).
 22

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for
P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a
subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco
(son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to
pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness
further testified that —

Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a bachelor and
which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by
defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership of inventoried property, but that
the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private funds, for
which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the buyer, pursuant to Article
1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of
the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was merely
repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo
and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable, since there was no
need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to
Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi
terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and
4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and
a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal y
exclusivo" is plainly self-serving, and not admissible in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal
character of the property in question; but as already noted, they are clear admissions against the pecuniary interest of the declarants,
Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the self-serving
statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de Jalajala
(Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the
Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding
special proceedings for the settlement of the estates of the deceased, the same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while
those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de
Borja in all three (3) cases.

G.R. No. L-4963 January 29, 1953

 23

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province
of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and
Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda
left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda,
executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson
was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by
her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to
the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the
present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-
law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that
Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino
Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his
widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of
the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs.
Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became
vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to
inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and
under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June,
1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter
(article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code,
they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article
2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have
retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when
the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be
declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been
done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right,
of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question
became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands
 24

that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new
Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria
Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to
assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother
and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim
is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it
involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either
in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it
results that the alleged assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

G.R. No. 172804 January 24, 2011

GONZALO VILLANUEVA, represented by his heirs, Petitioner,

vs.
SPOUSES FROILAN and LEONILA BRANOCO, Respondents.

DECISION

CARPIO, J.:

The Case

This resolves the petition for review1 of the ruling2 of the Court of Appeals dismissing a suit to recover a realty.

The Facts

Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs, 3 sued respondents, spouses Froilan and Leonila Branoco
(respondents), in the Regional Trial Court of Naval, Biliran (trial court) to recover a 3,492 square-meter parcel of land in Amambajag,
Culaba, Leyte (Property) and collect damages. Petitioner claimed ownership over the Property through purchase in July 1971 from
Casimiro Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner declared the Property
in his name for tax purposes soon after acquiring it.

In their Answer, respondents similarly claimed ownership over the Property through purchase in July 1983 from Eufracia Rodriguez
(Rodriguez) to whom Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed), signed at the bottom by the
parties and two witnesses, reads in full:

KNOW ALL MEN BY THESE PRESENTS:

That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of the late Juan Arcillas, a resident of Barrio Bool, municipality of Culaba,
subprovince of Biliran, Leyte del Norte, Philippines, hereby depose and say:

That as we live[d] together as husband and wife with Juan Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA, and
ADELAIDA, all surnamed ARCILLAS, and by reason of poverty which I suffered while our children were still young; and because my
husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what
happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient
as she was to all the works in our house, and because of the love and affection which I feel [for] her, I have one parcel of land located at
Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor
 25

of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land
is more or less described and bounded as follows:

1. Bounded North by Amambajag River; East, Benito Picao; South, Teofilo Uyvico; and West, by Public land; 2. It has an area of 3,492
square meters more or less; 3. It is planted to coconuts now bearing fruits; 4. Having an assessed value of ₱240.00; 5. It is now in the
possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be
vested on her upon my demise.

That I FURTHER DECLARE, and I reiterate that the land above described, I already devise in favor of EUFRACIA RODRIGUEZ since
May 21, 1962, her heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor, but will
be inherited by the heirs of EUFRACIA RODRIGUEZ;

That I EUFRACIA RODRIGUEZ, hereby accept the land above described from Inay Alvegia Rodrigo and I am much grateful to her and
praying further for a longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime.4

Respondents entered the Property in 1983 and paid taxes afterwards.

The Ruling of the Trial Court

The trial court ruled for petitioner, declared him owner of the Property, and ordered respondents to surrender possession to petitioner,
and to pay damages, the value of the Property’s produce since 1982 until petitioner’s repossession and the costs. 5 The trial court rejected
respondents’ claim of ownership after treating the Deed as a donation mortis causa which Rodrigo effectively cancelled by selling the
Property to Vere in 1970.6 Thus, by the time Rodriguez sold the Property to respondents in 1983, she had no title to transfer.

Respondents appealed to the Court of Appeals (CA), imputing error in the trial court’s interpretation of the Deed as a testamentary
disposition instead of an inter vivos donation, passing title to Rodriguez upon its execution.

Ruling of the Court of Appeals

The CA granted respondents’ appeal and set aside the trial court’s ruling. While conceding that the "language of the [Deed is] x x x
confusing and which could admit of possible different interpretations," 7 the CA found the following factors pivotal to its reading of the
Deed as donation inter vivos: (1) Rodriguez had been in possession of the Property as owner since 21 May 1962, subject to the delivery
of part of the produce to Apoy Alve; (2) the Deed’s consideration was not Rodrigo’s death but her "love and affection" for Rodriguez,
considering the services the latter rendered; (3) Rodrigo waived dominion over the Property in case Rodriguez predeceases her, implying
its inclusion in Rodriguez’s estate; and (4) Rodriguez accepted the donation in the Deed itself, an act necessary to effectuate
donations inter vivos, not devises.8 Accordingly, the CA upheld the sale between Rodriguez and respondents, and, conversely found the
sale between Rodrigo and petitioner’s predecessor-in-interest, Vere, void for Rodrigo’s lack of title.

In this petition, petitioner seeks the reinstatement of the trial court’s ruling. Alternatively, petitioner claims ownership over the Property
through acquisitive prescription, having allegedly occupied it for more than 10 years. 9

Respondents see no reversible error in the CA’s ruling and pray for its affirmance.

The Issue

The threshold question is whether petitioner’s title over the Property is superior to respondents’. The resolution of this issue rests, in turn,
on whether the contract between the parties’ predecessors-in-interest, Rodrigo and Rodriguez, was a donation or a devise. If the former,
respondents hold superior title, having bought the Property from Rodriguez. If the latter, petitioner prevails, having obtained title from
Rodrigo under a deed of sale the execution of which impliedly revoked the earlier devise to Rodriguez.

The Ruling of the Court

We find respondents’ title superior, and thus, affirm the CA.

 26

Naked Title Passed from Rodrigo to Rodriguez Under a Perfected Donation

We examine the juridical nature of the Deed – whether it passed title to Rodriguez upon its execution or is effective only upon Rodrigo’s
death – using principles distilled from relevant jurisprudence. Post-mortem dispositions typically –

(1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and control of the property while alive;

(2) That before the [donor’s] death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

(3) That the transfer should be void if the transferor should survive the transferee. 10

Further –

[4] [T]he specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter
vivos, rather than a disposition mortis causa[;]

[5] That the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is "to take
effect at the death of the donor" are not controlling criteria; such statements are to be construed together with the rest of the
instrument, in order to give effect to the real intent of the transferor[;] [and]

(6) That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid
uncertainty as to the ownership of the property subject of the deed. 11

It is immediately apparent that Rodrigo passed naked title to Rodriguez under a perfected donation inter vivos. First. Rodrigo stipulated
that "if the herein Donee predeceases me, the [Property] will not be reverted to the Donor, but will be inherited by the heirs of x x x
Rodriguez," signaling the irrevocability of the passage of title to Rodriguez’s estate, waiving Rodrigo’s right to reclaim title. This transfer
of title was perfected the moment Rodrigo learned of Rodriguez’s acceptance of the disposition 12 which, being reflected in the Deed, took
place on the day of its execution on 3 May 1965. Rodrigo’s acceptance of the transfer underscores its essence as a gift in presenti, not in
futuro, as only donations inter vivos need acceptance by the recipient.13 Indeed, had Rodrigo wished to retain full title over the Property,
she could have easily stipulated, as the testator did in another case, that "the donor, may transfer, sell, or encumber to any person or
entity the properties here donated x x x"14 or used words to that effect. Instead, Rodrigo expressly waived title over the Property in case
Rodriguez predeceases her.

In a bid to diffuse the non-reversion stipulation’s damning effect on his case, petitioner tries to profit from it, contending it is a
fideicommissary substitution clause. 15 Petitioner assumes the fact he is laboring to prove. The question of the Deed’s juridical nature,
whether it is a will or a donation, is the crux of the present controversy. By treating the clause in question as mandating fideicommissary
substitution, a mode of testamentary disposition by which the first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole or part of the inheritance, 16 petitioner assumes that the Deed is a will. Neither the Deed’s text nor the import
of the contested clause supports petitioner’s theory.

Second. What Rodrigo reserved for herself was only the beneficial title to the Property, evident from Rodriguez’s undertaking to "give
one [half] x x x of the produce of the land to Apoy Alve during her lifetime." 17 Thus, the Deed’s stipulation that "the ownership shall be
vested on [Rodriguez] upon my demise," taking into account the non-reversion clause, could only refer to Rodrigo’s beneficial title. We
arrived at the same conclusion in Balaqui v. Dongso18 where, as here, the donor, while "b[inding] herself to answer to the [donor] and her
heirs x x x that none shall question or disturb [the donee’s] right," also stipulated that the donation "does not pass title to [the donee]
during my lifetime; but when I die, [the donee] shall be the true owner" of the donated parcels of land. In finding the disposition as a
gift inter vivos, the Court reasoned:

Taking the deed x x x as a whole, x x x x it is noted that in the same deed [the donor] guaranteed to [the donee] and her heirs and
successors, the right to said property thus conferred. From the moment [the donor] guaranteed the right granted by her to [the donee] to
the two parcels of land by virtue of the deed of gift, she surrendered such right; otherwise there would be no need to guarantee said right.
 27

Therefore, when [the donor] used the words upon which the appellants base their contention that the gift in question is a donation mortis
causa [that the gift "does not pass title during my lifetime; but when I die, she shall be the true owner of the two aforementioned
parcels"] the donor meant nothing else than that she reserved of herself the possession and usufruct of said two parcels of land
until her death, at which time the donee would be able to dispose of them freely.19 (Emphasis supplied)

Indeed, if Rodrigo still retained full ownership over the Property, it was unnecessary for her to reserve partial usufructuary right over it. 20

Third. The existence of consideration other than the donor’s death, such as the donor’s love and affection to the donee and the services
the latter rendered, while also true of devises, nevertheless "corroborates the express irrevocability of x x x [inter vivos] transfers."21 Thus,
the CA committed no error in giving weight to Rodrigo’s statement of "love and affection" for Rodriguez, her niece, as consideration for
the gift, to underscore its finding.

It will not do, therefore, for petitioner to cherry-pick stipulations from the Deed tending to serve his cause (e.g. "the ownership shall be
vested on [Rodriguez] upon my demise" and "devise"). Dispositions bearing contradictory stipulations are interpreted wholistically, to give
effect to the donor’s intent. In no less than seven cases featuring deeds of donations styled as "mortis causa" dispositions, the Court,
after going over the deeds, eventually considered the transfers inter vivos,22 consistent with the principle that "the designation of the
donation as mortis causa, or a provision in the deed to the effect that the donation is ‘to take effect at the death of the donor’ are not
controlling criteria [but] x x x are to be construed together with the rest of the instrument, in order to give effect to the real intent of the
transferor."23 Indeed, doubts on the nature of dispositions are resolved to favor inter vivos transfers "to avoid uncertainty as to the
ownership of the property subject of the deed."24

Nor can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to Vere as proof of her retention of ownership. If such
were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will
give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of
passing ownership. The interest of settled property dispositions counsels against licensing such practice.25

Accordingly, having irrevocably transferred naked title over the Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the
donation nor dispose of the said property in favor of another."26 Thus, Rodrigo’s post-donation sale of the Property vested no title to Vere.
As Vere’s successor-in-interest, petitioner acquired no better right than him. On the other hand, respondents bought the Property from
Rodriguez, thus acquiring the latter’s title which they may invoke against all adverse claimants, including petitioner.

Petitioner Acquired No Title Over the Property

Alternatively, petitioner grounds his claim of ownership over the Property through his and Vere’s combined possession of the Property
for more than ten years, counted from Vere’s purchase of the Property from Rodrigo in 1970 until petitioner initiated his suit in the trial
court in February 1986.27 Petitioner anchors his contention on an unfounded legal assumption. The ten year ordinary prescriptive period
to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just
title and good faith.28 There is just title when the adverse claimant came into possession of the property through one of the modes
recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any
right.29 Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was
the owner thereof, and could transmit his ownership.30

Although Vere and petitioner arguably had just title having successively acquired the Property through sale, neither was a good faith
possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property "in the concept of an
owner" ("como tag-iya"31) since 21 May 1962, nearly three years before Rodrigo’s donation in 3 May 1965 and seven years before Vere
bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her,
including Vere and petitioner. Indeed, petitioner’s insistent claim that Rodriguez occupied the Property only in 1982, when she started
paying taxes, finds no basis in the records. In short, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession
of the Property, a fact that prevented Vere from being a buyer in good faith.

Lacking good faith possession, petitioner’s only other recourse to maintain his claim of ownership by prescription is to show open,
continuous and adverse possession of the Property for 30 years.32 Undeniably, petitioner is unable to meet this requirement.1avvphil
 28

Ancillary Matters Petitioner Raises Irrelevant

Petitioner brings to the Court’s attention facts which, according to him, support his theory that Rodrigo never passed ownership over the
Property to Rodriguez, namely, that Rodriguez registered the Deed and paid taxes on the Property only in 1982 and Rodriguez obtained
from Vere in 1981 a waiver of the latter’s "right of ownership" over the Property. None of these facts detract from our conclusion that
under the text of the Deed and based on the contemporaneous acts of Rodrigo and Rodriguez, the latter, already in possession of the
Property since 1962 as Rodrigo admitted, obtained naked title over it upon the Deed’s execution in 1965. Neither registration nor tax
payment is required to perfect donations. On the relevance of the waiver agreement, suffice it to say that Vere had nothing to waive to
Rodriguez, having obtained no title from Rodrigo. Irrespective of Rodriguez’s motivation in obtaining the waiver, that document, legally a
scrap of paper, added nothing to the title Rodriguez obtained from Rodrigo under the Deed.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 6 June 2005 and the Resolution dated 5 May 2006 of the Court
of Appeals.

SO ORDERED.

ARTICLE 781

G.R. No. 172804 January 24, 2011

GONZALO VILLANUEVA, represented by his heirs, Petitioner,

vs.
SPOUSES FROILAN and LEONILA BRANOCO, Respondents.

DECISION

CARPIO, J.:

The Case

This resolves the petition for review1 of the ruling2 of the Court of Appeals dismissing a suit to recover a realty.

The Facts

Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs, 3 sued respondents, spouses Froilan and Leonila Branoco
(respondents), in the Regional Trial Court of Naval, Biliran (trial court) to recover a 3,492 square-meter parcel of land in Amambajag,
Culaba, Leyte (Property) and collect damages. Petitioner claimed ownership over the Property through purchase in July 1971 from
Casimiro Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner declared the Property
in his name for tax purposes soon after acquiring it.

In their Answer, respondents similarly claimed ownership over the Property through purchase in July 1983 from Eufracia Rodriguez
(Rodriguez) to whom Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed), signed at the bottom by the
parties and two witnesses, reads in full:

KNOW ALL MEN BY THESE PRESENTS:

That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of the late Juan Arcillas, a resident of Barrio Bool, municipality of Culaba,
subprovince of Biliran, Leyte del Norte, Philippines, hereby depose and say:

That as we live[d] together as husband and wife with Juan Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA, and
ADELAIDA, all surnamed ARCILLAS, and by reason of poverty which I suffered while our children were still young; and because my
 29

husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what
happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient
as she was to all the works in our house, and because of the love and affection which I feel [for] her, I have one parcel of land located at
Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor
of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land
is more or less described and bounded as follows:

1. Bounded North by Amambajag River; East, Benito Picao; South, Teofilo Uyvico; and West, by Public land; 2. It has an area of 3,492
square meters more or less; 3. It is planted to coconuts now bearing fruits; 4. Having an assessed value of ₱240.00; 5. It is now in the
possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be
vested on her upon my demise.

That I FURTHER DECLARE, and I reiterate that the land above described, I already devise in favor of EUFRACIA RODRIGUEZ since
May 21, 1962, her heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor, but will
be inherited by the heirs of EUFRACIA RODRIGUEZ;

That I EUFRACIA RODRIGUEZ, hereby accept the land above described from Inay Alvegia Rodrigo and I am much grateful to her and
praying further for a longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime.4

Respondents entered the Property in 1983 and paid taxes afterwards.

The Ruling of the Trial Court

The trial court ruled for petitioner, declared him owner of the Property, and ordered respondents to surrender possession to petitioner,
and to pay damages, the value of the Property’s produce since 1982 until petitioner’s repossession and the costs. 5 The trial court rejected
respondents’ claim of ownership after treating the Deed as a donation mortis causa which Rodrigo effectively cancelled by selling the
Property to Vere in 1970.6 Thus, by the time Rodriguez sold the Property to respondents in 1983, she had no title to transfer.

Respondents appealed to the Court of Appeals (CA), imputing error in the trial court’s interpretation of the Deed as a testamentary
disposition instead of an inter vivos donation, passing title to Rodriguez upon its execution.

Ruling of the Court of Appeals

The CA granted respondents’ appeal and set aside the trial court’s ruling. While conceding that the "language of the [Deed is] x x x
confusing and which could admit of possible different interpretations," 7 the CA found the following factors pivotal to its reading of the
Deed as donation inter vivos: (1) Rodriguez had been in possession of the Property as owner since 21 May 1962, subject to the delivery
of part of the produce to Apoy Alve; (2) the Deed’s consideration was not Rodrigo’s death but her "love and affection" for Rodriguez,
considering the services the latter rendered; (3) Rodrigo waived dominion over the Property in case Rodriguez predeceases her, implying
its inclusion in Rodriguez’s estate; and (4) Rodriguez accepted the donation in the Deed itself, an act necessary to effectuate
donations inter vivos, not devises.8 Accordingly, the CA upheld the sale between Rodriguez and respondents, and, conversely found the
sale between Rodrigo and petitioner’s predecessor-in-interest, Vere, void for Rodrigo’s lack of title.

In this petition, petitioner seeks the reinstatement of the trial court’s ruling. Alternatively, petitioner claims ownership over the Property
through acquisitive prescription, having allegedly occupied it for more than 10 years. 9

Respondents see no reversible error in the CA’s ruling and pray for its affirmance.

The Issue

The threshold question is whether petitioner’s title over the Property is superior to respondents’. The resolution of this issue rests, in turn,
on whether the contract between the parties’ predecessors-in-interest, Rodrigo and Rodriguez, was a donation or a devise. If the former,
respondents hold superior title, having bought the Property from Rodriguez. If the latter, petitioner prevails, having obtained title from
Rodrigo under a deed of sale the execution of which impliedly revoked the earlier devise to Rodriguez.
 30

The Ruling of the Court

We find respondents’ title superior, and thus, affirm the CA.

Naked Title Passed from Rodrigo to Rodriguez Under a Perfected Donation

We examine the juridical nature of the Deed – whether it passed title to Rodriguez upon its execution or is effective only upon Rodrigo’s
death – using principles distilled from relevant jurisprudence. Post-mortem dispositions typically –

(1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and control of the property while alive;

(2) That before the [donor’s] death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

(3) That the transfer should be void if the transferor should survive the transferee. 10

Further –

[4] [T]he specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter
vivos, rather than a disposition mortis causa[;]

[5] That the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is "to take
effect at the death of the donor" are not controlling criteria; such statements are to be construed together with the rest of the
instrument, in order to give effect to the real intent of the transferor[;] [and]

(6) That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid
uncertainty as to the ownership of the property subject of the deed.11

It is immediately apparent that Rodrigo passed naked title to Rodriguez under a perfected donation inter vivos. First. Rodrigo stipulated
that "if the herein Donee predeceases me, the [Property] will not be reverted to the Donor, but will be inherited by the heirs of x x x
Rodriguez," signaling the irrevocability of the passage of title to Rodriguez’s estate, waiving Rodrigo’s right to reclaim title. This transfer
of title was perfected the moment Rodrigo learned of Rodriguez’s acceptance of the disposition 12 which, being reflected in the Deed, took
place on the day of its execution on 3 May 1965. Rodrigo’s acceptance of the transfer underscores its essence as a gift in presenti, not in
futuro, as only donations inter vivos need acceptance by the recipient.13 Indeed, had Rodrigo wished to retain full title over the Property,
she could have easily stipulated, as the testator did in another case, that "the donor, may transfer, sell, or encumber to any person or
entity the properties here donated x x x"14 or used words to that effect. Instead, Rodrigo expressly waived title over the Property in case
Rodriguez predeceases her.

In a bid to diffuse the non-reversion stipulation’s damning effect on his case, petitioner tries to profit from it, contending it is a
fideicommissary substitution clause. 15 Petitioner assumes the fact he is laboring to prove. The question of the Deed’s juridical nature,
whether it is a will or a donation, is the crux of the present controversy. By treating the clause in question as mandating fideicommissary
substitution, a mode of testamentary disposition by which the first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole or part of the inheritance, 16 petitioner assumes that the Deed is a will. Neither the Deed’s text nor the import
of the contested clause supports petitioner’s theory.

Second. What Rodrigo reserved for herself was only the beneficial title to the Property, evident from Rodriguez’s undertaking to "give
one [half] x x x of the produce of the land to Apoy Alve during her lifetime." 17 Thus, the Deed’s stipulation that "the ownership shall be
vested on [Rodriguez] upon my demise," taking into account the non-reversion clause, could only refer to Rodrigo’s beneficial title. We
arrived at the same conclusion in Balaqui v. Dongso18 where, as here, the donor, while "b[inding] herself to answer to the [donor] and her
heirs x x x that none shall question or disturb [the donee’s] right," also stipulated that the donation "does not pass title to [the donee]
during my lifetime; but when I die, [the donee] shall be the true owner" of the donated parcels of land. In finding the disposition as a
gift inter vivos, the Court reasoned:
 31

Taking the deed x x x as a whole, x x x x it is noted that in the same deed [the donor] guaranteed to [the donee] and her heirs and
successors, the right to said property thus conferred. From the moment [the donor] guaranteed the right granted by her to [the donee] to
the two parcels of land by virtue of the deed of gift, she surrendered such right; otherwise there would be no need to guarantee said right.
Therefore, when [the donor] used the words upon which the appellants base their contention that the gift in question is a donation mortis
causa [that the gift "does not pass title during my lifetime; but when I die, she shall be the true owner of the two aforementioned
parcels"] the donor meant nothing else than that she reserved of herself the possession and usufruct of said two parcels of land
until her death, at which time the donee would be able to dispose of them freely.19 (Emphasis supplied)

Indeed, if Rodrigo still retained full ownership over the Property, it was unnecessary for her to reserve partial usufructuary right over it. 20

Third. The existence of consideration other than the donor’s death, such as the donor’s love and affection to the donee and the services
the latter rendered, while also true of devises, nevertheless "corroborates the express irrevocability of x x x [inter vivos] transfers."21 Thus,
the CA committed no error in giving weight to Rodrigo’s statement of "love and affection" for Rodriguez, her niece, as consideration for
the gift, to underscore its finding.

It will not do, therefore, for petitioner to cherry-pick stipulations from the Deed tending to serve his cause (e.g. "the ownership shall be
vested on [Rodriguez] upon my demise" and "devise"). Dispositions bearing contradictory stipulations are interpreted wholistically, to give
effect to the donor’s intent. In no less than seven cases featuring deeds of donations styled as "mortis causa" dispositions, the Court,
after going over the deeds, eventually considered the transfers inter vivos,22 consistent with the principle that "the designation of the
donation as mortis causa, or a provision in the deed to the effect that the donation is ‘to take effect at the death of the donor’ are not
controlling criteria [but] x x x are to be construed together with the rest of the instrument, in order to give effect to the real intent of the
transferor."23 Indeed, doubts on the nature of dispositions are resolved to favor inter vivos transfers "to avoid uncertainty as to the
ownership of the property subject of the deed."24

Nor can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to Vere as proof of her retention of ownership. If such
were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will
give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of
passing ownership. The interest of settled property dispositions counsels against licensing such practice.25

Accordingly, having irrevocably transferred naked title over the Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the
donation nor dispose of the said property in favor of another."26 Thus, Rodrigo’s post-donation sale of the Property vested no title to Vere.
As Vere’s successor-in-interest, petitioner acquired no better right than him. On the other hand, respondents bought the Property from
Rodriguez, thus acquiring the latter’s title which they may invoke against all adverse claimants, including petitioner.

Petitioner Acquired No Title Over the Property

Alternatively, petitioner grounds his claim of ownership over the Property through his and Vere’s combined possession of the Property
for more than ten years, counted from Vere’s purchase of the Property from Rodrigo in 1970 until petitioner initiated his suit in the trial
court in February 1986.27 Petitioner anchors his contention on an unfounded legal assumption. The ten year ordinary prescriptive period
to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just
title and good faith.28 There is just title when the adverse claimant came into possession of the property through one of the modes
recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any
right.29 Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was
the owner thereof, and could transmit his ownership.30

Although Vere and petitioner arguably had just title having successively acquired the Property through sale, neither was a good faith
possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property "in the concept of an
owner" ("como tag-iya"31) since 21 May 1962, nearly three years before Rodrigo’s donation in 3 May 1965 and seven years before Vere
bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her,
including Vere and petitioner. Indeed, petitioner’s insistent claim that Rodriguez occupied the Property only in 1982, when she started
paying taxes, finds no basis in the records. In short, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession
of the Property, a fact that prevented Vere from being a buyer in good faith.
 32

Lacking good faith possession, petitioner’s only other recourse to maintain his claim of ownership by prescription is to show open,
continuous and adverse possession of the Property for 30 years. 32 Undeniably, petitioner is unable to meet this requirement.1avvphil

Ancillary Matters Petitioner Raises Irrelevant

Petitioner brings to the Court’s attention facts which, according to him, support his theory that Rodrigo never passed ownership over the
Property to Rodriguez, namely, that Rodriguez registered the Deed and paid taxes on the Property only in 1982 and Rodriguez obtained
from Vere in 1981 a waiver of the latter’s "right of ownership" over the Property. None of these facts detract from our conclusion that
under the text of the Deed and based on the contemporaneous acts of Rodrigo and Rodriguez, the latter, already in possession of the
Property since 1962 as Rodrigo admitted, obtained naked title over it upon the Deed’s execution in 1965. Neither registration nor tax
payment is required to perfect donations. On the relevance of the waiver agreement, suffice it to say that Vere had nothing to waive to
Rodriguez, having obtained no title from Rodrigo. Irrespective of Rodriguez’s motivation in obtaining the waiver, that document, legally a
scrap of paper, added nothing to the title Rodriguez obtained from Rodrigo under the Deed.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 6 June 2005 and the Resolution dated 5 May 2006 of the Court
of Appeals.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

ARTICLE 798
FIRST DIVISION

[G.R. No. 174489 : April 07, 2012]

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO,
VIRGILIO REGALA, JR., AND RAFAEL TITCO, PETITIONERS, VS. LORENZO LAXA, RESPONDENT.

DECISION

DEL CASTILLO, J.:

It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind
at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his
estate in the manner provided in his will so long as it is legally tenable. [1]cralaw

Before us is a Petition for Review on Certiorari[2] of the June 15, 2006 Decision[3] of the Court of Appeals (CA) in CA-G.R. CV No.
80979 which reversed the September 30, 2003 Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special
Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia Regala
(Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30
September 2003, is hereby SET ASIDE and a new one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.

SO ORDERED.[5]

Also assailed herein is the August 31, 2006 CA Resolution[6] which denied the Motion for Reconsideration thereto.

Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the RTC which disallowed the notarial will of
 33

Paciencia.

Factual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled “Tauli Nang Bilin o Testamento Miss Paciencia
Regala”[7] (Will) in the Pampango dialect on September 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin
(Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the
document is her last will and testament. She thereafter affixed her signature at the end of the said document on page 3[8] and then on
the left margin of pages 1, 2 and 4 thereof.

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado
(Faustino). The three attested to the Will’s due execution by affixing their signatures below its attestation clause [10] and on the left margin
of pages 1, 2 and 4 thereof,[11] in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his
wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus:

x x x x

Fourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO LAXA and CORAZON
F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA
and CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and
Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA
LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would decide to bequeath since
they are the children of the spouses;
x x x x

[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and testament, I am also
bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them
to offer masses yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania Regala and their spouses and with respect
to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her
testament as stated in my testament. x x x [12]

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s nephew whom she treated as her own son.
Conversely, Lorenzo came to know and treated Paciencia as his own mother. [13] Paciencia lived with Lorenzo’s family in Sasmuan,
Pampanga and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19,
1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family until her death on January
4, 1996.

In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition[14] with the RTC of Guagua, Pampanga for
the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favor, docketed as Special Proceedings No.
G-1186.

There being no opposition to the petition after its due publication, the RTC issued an Order on June 13, 2000 [15] allowing Lorenzo to
present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of the instrumental witnesses in the execution
of the last will and testament of Paciencia on September 13, 1981. [16] The Will was executed in her father’s (Judge Limpin) home office,
in her presence and of two other witnesses, Francisco and Faustino.[17] Dra. Limpin positively identified the Will and her signatures on
all its four pages.[18] She likewise positively identified the signature of her father appearing thereon. [19] Questioned by the prosecutor
regarding Judge Limpin’s present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain
surgery.[20] The judge can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that her father can
no longer testify in court.
 34

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition[22] to Lorenzo’s petition. Antonio averred
that the properties subject of Paciencia’s Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia
had no right to bequeath them to Lorenzo.

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco,
Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition [24] contending that
Paciencia’s Will was null and void because ownership of the properties had not been transferred and/or titled to Paciencia before her
death pursuant to Article 1049, paragraph 3 of the Civil Code.[25] Petitioners also opposed the issuance of Letters of Administration in
Lorenzo’s favor arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of the USA. [26] Petitioners
prayed that Letters of Administration be instead issued in favor of Antonio.

Later still on September 26, 2000, petitioners filed an Amended Opposition [28] asking the RTC to deny the probate of Paciencia’s Will on
the following grounds: the Will was not executed and attested to in accordance with the requirements of the law; that Paciencia was
mentally incapable to make a Will at the time of its execution; that she was forced to execute the Will under duress or influence of fear or
threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other
persons for his benefit; that the signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was obtained
through fraud or trickery; and, that Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an Opposition
and Recommendation[29] reiterating their opposition to the appointment of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.

On January 29, 2001, the RTC issued an Order[30] denying the requests of both Lorenzo and Antonio to be appointed administrator since
the former is a citizen and resident of the USA while the latter’s claim as a co-owner of the properties subject of the Will has not yet been
established.

Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was recalled for cross-examination by the
petitioners. She testified as to the age of her father at the time the latter notarized the Will of Paciencia; the living arrangements of
Paciencia at the time of the execution of the Will; and the lack of photographs when the event took place. [31]

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand. Monico, son of Faustino, testified on his
father’s condition. According to him his father can no longer talk and express himself due to brain damage. A medical certificate was
presented to the court to support this allegation.

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in Sasmuan, Pampanga with his
family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his family until her death in January 1996; the
relationship between him and Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him in
as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the time of Paciencia’s death, she did
not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and
was only given to him after Paciencia’s death through Faustino; and he was already residing in the USA when the Will was
executed.[33] Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself and stated that he
was familiar with Paciencia’s signature because he accompanied her in her transactions.[34] Further, Lorenzo belied and denied having
used force, intimidation, violence, coercion or trickery upon Paciencia to execute the Will as he was not in the Philippines when the same
was executed.[35] On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her arrival in the USA
but that he saw a copy of the Will only after her death.

As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins. [37] She claimed to have helped in the household chores
in the house of Paciencia thereby allowing her to stay therein from morning until evening and that during the period of her service in the
said household, Lorenzo’s wife and his children were staying in the same house. [38] She served in the said household from 1980 until
Paciencia’s departure for the USA on September 19, 1981. [39]

On September 13, 1981, Rosie claimed that she saw Faustino bring “something” for Paciencia to sign at the latter’s house. [40] Rosie
admitted, though, that she did not see what that “something” was as same was placed inside an envelope. [41] However, she remembered
Paciencia instructing Faustino to first look for money before she signs them. [42] A few days after or on September 16, 1981, Paciencia
went to the house of Antonio’s mother and brought with her the said envelope. [43] Upon going home, however, the envelope was no
 35

longer with Paciencia.[44] Rosie further testified that Paciencia was referred to as “magulyan” or “forgetful” because she would sometimes
leave her wallet in the kitchen then start looking for it moments later. [45] On cross examination, it was established that Rosie was neither
a doctor nor a psychiatrist, that her conclusion that Paciencia was “magulyan” was based on her personal assessment,[46] and that it was
Antonio who requested her to testify in court. [47]

In his direct examination, Antonio stated that Paciencia was his aunt.[48] He identified the Will and testified that he had seen the said
document before because Paciencia brought the same to his mother’s house and showed it to him along with another document on
September 16, 1981.[49] Antonio alleged that when the documents were shown to him, the same were still unsigned. [50] According to
him, Paciencia thought that the documents pertained to a lease of one of her rice lands, [51] and it was he who explained that the
documents were actually a special power of attorney to lease and sell her fishpond and other properties upon her departure for the
USA, and a Will which would transfer her properties to Lorenzo and his family upon her death. [52] Upon hearing this, Paciencia
allegedly uttered the following words: “Why will I never [return], why will I sell all my properties?” Who is Lorenzo? Is he the only [son]
of God? I have other relatives [who should] benefit from my properties. Why should I die already?”[53] Thereafter, Antonio advised
Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, “I know nothing about those, throw
them away or it is up to you. The more I will not sign them.”[54] After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents

and eventually turned them over to Faustino on September 18, 1981. [55]

Ruling of the Regional Trial Court

On September 30, 2003, the RTC rendered its Decision[56] denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated September 13,
1981 of Paciencia Regala.

SO ORDERED.[57]

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no
longer possessed of sufficient reason or strength of mind to have testamentary capacity. [58]

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The appellate court did not agree with
the RTC’s conclusion that Paciencia was of unsound mind when she executed the Will. It ratiocinated that “the state of being
‘magulyan’ does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a Will.” [59] Moreover, the
oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind. Further, no
concrete circumstances or events were given to prove the allegation that Paciencia was tricked or forced into signing the Will.[60]

Petitioners moved for reconsideration[61] but the motion was denied by the CA in its Resolution[62] dated August 31, 2006.

Hence, this petition.

Issues

Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the following errors:

I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE OF PACIENCIA’S WILL
DESPITE RESPONDENT’S UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;

II.
 36

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE
EVIDENCE ON RECORD;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA
WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED[63]

The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to warrant its allowance
for probate.

Our Ruling

We deny the petition.

Faithful compliance with the formalities laid down

by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than the extrinsic validity of a

Will in probate proceedings.[64] This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:

Rule 75
Production of Will. Allowance of Will Necessary.

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law.[65] These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of
the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses signed the Will in the
presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one
 37

another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her
state of mind when she signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound

mind at the time of the execution of the will lies on
the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was “magulyan” or forgetful so much so that it effectively stripped her of
testamentary capacity. They likewise claimed in their Motion for Reconsideration[66] filed with the CA that Paciencia was not only
“magulyan” but was actually suffering from paranoia.[67]

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to
render him unfit to execute a Will.[68] Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New Civil
Code states:

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no substantial evidence, medical or
otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more
worthy of credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpin’s house and
voluntarily executed the Will. “The testimony of subscribing witnesses to a Will concerning the testator’s mental condition is entitled to
great weight where they are truthful and intelligent.”[69] More importantly, a testator is presumed to be of sound mind at the time of the
execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states:

Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. Clearly,
thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned,
no substantial evidence was presented by them to prove the same, thereby warranting the CA’s finding that petitioners failed to discharge
such burden.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper objects of her bounty
and the character of the testamentary act. As aptly pointed out by the CA:

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially requested that the
customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the
properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution
of the will and was not included therein as devisee.[70]

Bare allegations of duress or influence of fear

or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.
 38

An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute
his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was forced to execute the Will under duress or
influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo
or by some other persons for his benefit; and that assuming Paciencia’s signature to be genuine, it was obtained through fraud or
trickery. These are grounded on the alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son and that love even extended
to Lorenzo’s wife and children. This kind of relationship is not unusual. It is in fact not unheard of in our culture for old maids or
spinsters to care for and raise their nephews and nieces and treat them as their own children. Such is a prevalent and accepted
cultural practice that has resulted in many family discords between those favored by the testamentary disposition of a testator and
those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo and his family is different from her
relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the
latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between
Paciencia and the devisees tends to support the authenticity of the said document as against petitioners’ allegations of duress,
influence of fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are
not supported by concrete, substantial and credible evidence on record. It is worth stressing that bare arguments, no matter how
forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to uphold said allegations.[71] Furthermore,
“a purported will is not [to be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will
be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend
largely on the attitude of those interested in [the estate of the deceased].” [72]

Court should be convinced by the evidence

presented before it that the Will was duly
executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied
with. It provides:

RULE 76
Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will is contested, all the subscribing witnesses,
and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of
such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If
any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful
credibility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witnesses, and if
the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in court since all but one witness,
Francisco, are still living.

We cannot agree with petitioners.

 39

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained during the
probate proceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and
express himself due to brain damage. To prove this, said witness presented the corresponding medical certificate. For her part, Dra.
Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time, Judge Limpin
could no longer talk and could not even remember his daughter’s name so that Dra. Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners neither interposed any objections to the
testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all intents and purposes, Lorenzo
was able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary public to testify in
court. Because of this the probate of Paciencia’s Will may be allowed on the basis of Dra. Limpin’s testimony proving her sanity and
the due execution of the Will, as well as on the proof of her handwriting. It is an established rule that “[a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just
because all the attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before
it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner
required by law.”[73]

Moreover, it bears stressing that “[i]rrespective x x x of the posture of any of the parties as regards the authenticity and due execution
of the will x x x in question, it is the mandate of the law that it is the evidence before the court and/or [evidence that] ought to be before
it that is controlling.”[74] “The very existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her]
estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full
effect independent of the attitude of the parties affected thereby.” [75] This, coupled with Lorenzo’s established relationship with
Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by
petitioners apart from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.cralaw

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution dated August 31, 2006 of the Court of
Appeals in CA-G.R. CV No. 80979 are AFFIRMED.

SO ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Villarama, Jr., JJ., concur.

[G.R. NO. 157451 December 16, 2005]

LETICIA VALMONTE ORTEGA, Petitioner, v. JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed. In the present
case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the
part of the appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002
Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as
follows:
 40

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4

The assailed Resolution denied petitioner's Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In
1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end
of the attestation clause and again on the left hand margin. It provides in the body that:

'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

'I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties,
which belongs to me as [co-owner]:

A. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No.
123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte),
having share and share alike;

b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife
and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila,
jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be
exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.'

"The allowance to probate of this will was opposed by Leticia on the grounds that:
 41

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants;
and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing
his signature thereto;'

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they
came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when
to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was
made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his
attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him,
even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was
hospitalized only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator's will, testified that it was in the first week of June 1983 when
the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back
on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by
his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained
that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at the time he affixed his signature on the will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house
of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15,
1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog
 42

dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during
the execution, the testator's wife, Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings
of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke
because in 1983 Placido lived in the Makati residence and asked Leticia's family to live with him and they took care of him. During that
time, the testator's physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter
Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; andcralawlibrary

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate." 5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary
public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite
ways"6 did not make him a person of unsound mind.

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never
intended that the instrument should be his last will and testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will." 8

In short, petitioner assails the CA's allowance of the probate of the will of Placido Valmonte.

This Court's Ruling

The Petition has no merit.

Main Issue:
 43

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court.
As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when,
as in the instant case, the findings of fact of the appellate court differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed.
The law lays down the procedures and requisites that must be satisfied for the probate of a will. 10 Verily, Article 839 of the Civil Code
states the instances when a will may be disallowed, as follows:

"Article 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."

In the present case, petitioner assails the validity of Placido Valmonte's will by imputing fraud in its execution and challenging the testator's
state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator's wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage
with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention
of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience" 12 for an
old man with a severe psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he
would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution.14 The burden
to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other
than the self-serving allegations of petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. 16 That the testator was tricked into
signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole
 44

beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in
his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document,
"because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion."18 More important,
the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of
the testator and of one another.19 Furthermore, the testator and the witnesses must acknowledge the will before a notary public. 20 In any
event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 - -
as quoted by the CA - - are reproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your
office?chanroblesvirtualawlibrary

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?chanroblesvirtualawlibrary

A They did as of agreement but unfortunately, I was out of town.

xxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when
the document was acknowledged?chanroblesvirtualawlibrary

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of
exhibit C?chanroblesvirtualawlibrary

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation
clause?chanroblesvirtualawlibrary

A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated August 9, 1983,
will you look at this document and tell us this discrepancy in the date?chanroblesvirtualawlibrary

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento
told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?chanroblesvirtualawlibrary
 45

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?chanroblesvirtualawlibrary

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxx

A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento
and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were
not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?chanroblesvirtualawlibrary

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?chanroblesvirtualawlibrary

A Yes, Sir.

Q For what purpose?chanroblesvirtualawlibrary

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?chanroblesvirtualawlibrary

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the
witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due execution. 23 Their testimony favoring it and the finding that it was executed in accordance
with the formalities required by law should be affirmed, absent any showing of ill motives. 24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or shattered by disease, injury or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.
 46

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

"The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows:
(1) the nature of the estate to be disposed of, (2) the proper objects of the testator's bounty, and (3) the character of the testamentary
act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity
at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing
of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that
degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and
while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." 26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against
petitioner.

SO ORDERED.

ARTICLE 800

G.R. No. L-25966 November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE
BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

STREET, J.:

This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims
said half by the intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the same by
accredition and in the character of universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz
Lopez de Bueno, and Margariat Lopez appealed.

The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and
testament, in the second clause of which he declared:
 47

I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself
and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will
above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the
time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented
by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having
been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772).

Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain
exceptions in favor of near relatives, no testamentary provision shall be valid when made by a ward in favor of his guardian before the
final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision
made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due
to the accidental relation of guardian and ward existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a
testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without
special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or
is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the
same inheritance without special designation of shares. In addition to this, one of the persons named as heir has predeceased the
testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article
(982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the
undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half
which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to
the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which
was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law
of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a
will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it
is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is
disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was
valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence
Margarita Lopez s entitled to inherit the share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the
Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two
provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that
the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more
specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former
article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is
expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification
is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which
the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two
provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can
only occur when accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate succession occurs when the
heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion
occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction
is then drawn between incapacity to succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such
as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so refined an
interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability
 48

to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate
succession.

The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of
accretion with regard to portions of an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the
inheritance is governed by article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative
to intestate succession (Manresa, Comentarios al Codigo Civil Español, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp.
372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if
nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition
be not fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment,
amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy systems a presumption against
it, — a presumption which has its basis in the supposed intention of the testator.

The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

Avanceña, C, J., Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

ARTICLE 804

G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.

AVANCEÑA, J.:

On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this
decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly
admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the will
itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly
written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin
of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly,
the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign
at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed
twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its
left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the
 49

sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on
the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise
clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive parts of a
will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered,
cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential
part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the
margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the
signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses,
or be paged.

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 primordal 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 frustative of the testator's
last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But
the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix
was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

G.R. No. L-19079 January 15, 1923

PRIMITIVO GONZALEZ Y LAUREL, applicant-appellee, vs. JOVITA LAUREL Y TAPIA, opponent-appellant.

ROMUALDEZ, J.:

By an order dated December 16, 1921, the Court of First Instance of Batangas allowed the document, Exhibit A, to probate as the last
will and testament of the deceased Maria Tapia, thus granting the petition of Primitivo L. Gonzalez and overruling the opposition presented
by Jovita Laurel.

Jovita Laurel now appeals to this court from that ruling of the court below, alleging that court erred:

1. In Holding that Exhibit A, the supposed will of the deceased Maria Tapia y Castillo, was executed with the solemnities prescribed by
the law, notwithstanding that there was no proof of the dialect known by the said deceased and of the fact that it was the same in which
said Exhibit A was written.

2. In not holding that the signatures of Maria Tapia appearing in said Exhibit A had been obtained through deceipt, surprise, fraud, and
in an illegal and improper manner.
 50

3. In not finding that said Exhibit A was obtained through unlawful pressure, influence and machinations of the applicant, Primitivo L.
Gonzalez, one of the legatees, in connivance with Attorney Modesto Castillo.

4. In not finding that the deceased Maria Tapia was physically and mentally incapacitated at the time she is said to have executed Exhibit
A.

5. In declaring said Exhibit A valid and authentic and allowing it to probate as the will and testament of the deceased Maria Tapia y
Castillo.

Concerning the first error assigned, it appears that the deceased Maria Tapia was a resident of the Province of Batangas, a Tagalog
region, where said deceased had real properties for several years. It also appears that she requested Modesto Castillo to draw her will
in Tagalog. From the record taken as a whole, a presumption arises that said Maria Tapia knew the Tagalog dialect, which presumption
is now conclusive for not having been overthrown nor rebutted.

The three following errors have reference to the question whether or not the testatrix acted voluntarily and with full knowledge in executing
and signing the will. The preponderance of evidence in this respect is that said document was executed and signed by Maria Tapia
voluntarily and with full knowledge, without fraud, deceit, surprise, or undue influence or machinations of anybody, she being then mentally
capacitated and free. Such is the fact established by the evidence, which we have carefully examined.

In connection with the evidence, our attention was called to an irreconcilable conflict between the transcript of an answer of the witness
Primitivo L. Gonzalez, presented by the appellant as "Annex 1" to his motion filed in this court (fol. 16 of the Rollo), and the official
transcript, in that while said answer is " Yes, sir," according to the transcript of the appellant, it is " Certainly, that is not true," according
to the official transcript of the stenographic notes attached to the record. But it is to be noted that at the continuation of the hearing held
on a subsequent date, in which said witness Primitivo L. Gonzalez was examined on this contradiction, he said in the course of the
rebuttal evidence of the applicant: " No, sir. I did not answer in that way. I did not take her hand to make her sign. I did not by any means
answer that question to that effect. I very well remember that fact, because it affects much the probate of the will." (Fols. 56 and 57 of
transcript and documentary evidence.)

It appearing from the record that the document Exhibit A is the will of the deceased Maria Tapia, executed with all the formalities and
solemnities required by the law, the trial court did not commit any error in admitting it to probate.

For the purposes of this decision, we deem it unnecessary to pass upon the question raised by the appellee as to whether or not this
appeal was perfected within the time fixed by the law.

The order appealed from is affirmed, with the costs against the appellant. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO,
Deputy Clerk of Court, respondents.

AQUINO, J.:
 51

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is
written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which reveal the
following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923
(p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy named Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p.
148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He
was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent in Special Proceeding
No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful
to Agapito (pp. 61-63, Record of testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian of Agapito (p.
16, Rollo of CA case). Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-
R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano
and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39,
CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a
petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The
transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following day, April 1, Judge Honrado
issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
 52

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of
the testatrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other
occupants of the decedent's house filed on April 18 in the said proceeding a motion to set aside the order of April 11 ejecting them. They
alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's
guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they
questioned the probate court's jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued
on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that
the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito and that Marina was not qualified
to act as executrix (pp. 83-91, Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the proceedings (filed
on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed
a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was
the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-anakan who was not legally
adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of
the non-appearance of her counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the
alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp.
208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the
estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged Judge Honrado with having
probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact
 53

that she affixed her thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree
of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina
Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the
deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate case by
alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should she persist, she might
lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that
Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty day period within which
to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter
dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the
testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's
charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision.
Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court Administrator's memorandum of
September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she
prayed that the will, the decree of probate and all the proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will "just to accommodate a brother lawyer on the condition" that said
lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort
to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for having allegedly
become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might
have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have
inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment
or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
 54

Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be
reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in
persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously
illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate
case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because
of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator.
Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father
who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was
not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed
on respondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer employed in the judiciary. Since
September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm
Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

SO ORDERED.

ARTICLE 805

G.R. No. 122880 April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

DECISION
 55

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December
1982 at the age of 80. In refusing to give legal recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will
whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will
which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of
a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to
the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills — that
they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner
is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-
isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko
at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa
akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon,
ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng
Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42,
Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na
siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at
 56

sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of
the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued
to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate
heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioner’s right to occupy the properties of the decedent. 3 It also asserted that contrary to the representations
of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.
 57

After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC favorably took into account the
testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the
modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in
expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and
attested to in accordance with law.

After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind
the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded
to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.

On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito."

The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.

On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is
of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.

With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each page and that
the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page
contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.

As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the
will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda
Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for
probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the
will void and undeserving of probate.10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in
the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance
rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
 58

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an incomplete attempt
to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re:
Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to
state the number of pages contained in the will. 15 In ruling that the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation
clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty." 16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to
the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate
court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation
does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable
in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra,"
although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last
part of the body of the Will:
 59

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems
to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number
of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar
cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations." (page 165-165, supra) (Underscoring supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages
used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the
will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and
actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which
contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses
signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain
any notarial acknowledgment wherein the number of pages of the will should be stated. 21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the requirement that the attestation
state the number of pages of the will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a
rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid
if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective
permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end
in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in
respect to the formalities in the execution of wills." 24 However, petitioner conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views
on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills. 27 Uy
Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to recommend a more liberal construction through the "substantial compliance
rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
 60

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the
number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court
refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other, 30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot
be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance
to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself." 31 Thus, a failure by the attestation clause to state that the testator
signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is the only
textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809.
The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The failure to state the
number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada.
However, in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of notarial wills. 34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will.35 The transcendent legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent admission of wills to
probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more
critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses
appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their
averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom
of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand margin.
 61

We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending
the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of
the testator and any or all of the witnesses. 39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be "attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand
margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the
attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited
flaws in compliance with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his
act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document
has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of
an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. 42 Ordinarily, the
language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental
witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
 62

act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their
own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree
of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in
the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on
the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In
this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the
so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these
omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack
of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will
allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the
attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the facts attending
the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned
 63

attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives
their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of
the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner
and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written
in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and
it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of
the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon
in the presence of the testator and of each other.
 64

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because
the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the
will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A"
and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person
named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit
"A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the
known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to
have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special administrator. 1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to
the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the
admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
 65

May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly
to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano
at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr.
and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses
on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared
by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together
with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the
execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and
both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified
upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit
"A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition
and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1")
are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents
were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-
appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits
"A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog,
a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson,
together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the
witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original
were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support
the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural
 66

variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of
the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly
that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident
variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not
discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering
the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should
not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in
the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which,
as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked
by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution
of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the
will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as
by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes
of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed
at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and
that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers
is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate.
Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants
run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh.
A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature
in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate
court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one
first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were
involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is
 67

nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the
amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

G.R. No. 189984 November 12, 2012

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This Petition for Review on Certiorari assails the March 30, 2009 Decision1 and October 22, 2009 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005 Decision 3 of the Regional Trial Court of Manila, Branch 42 (RTC), in
SP. Proc. No. 99-95225 disallowing the probate of the Last Will and Testament of Enrique S. Lopez.

The Factual Antecedents

On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate children, namely, petitioner
Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon
(Victoria) as compulsory heirs. Before Enrique’s death, he executed a Last Will and Testament 4 on August 10, 1996 and constituted
Richard as his executor and administrator.

On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the RTC of Manila with
prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition contending that the purported last will and
testament was not executed and attested as required by law, and that it was procured by undue and improper pressure and influence on
the part of Richard. The said opposition was also adopted by Victoria.

After submitting proofs of compliance with jurisdictional requirements, Richard presented the attesting witnesses, namely: Reynaldo
Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the will, Atty. Perfecto Nolasco
(Atty. Nolasco). The instrumental witnesses testified that after the late Enrique read and signed the will on each and every page, they
also read and signed the same in the latter's presence and of one another. Photographs of the incident were taken and presented during
trial. Manalo further testified that she was the one who prepared the drafts and revisions from Enrique before the final copy of the will
was made.

Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. Prior to August 10, 1996, the latter consulted
him in the preparation of the subject will and furnished him the list of his properties for distribution among his children. He prepared the
will in accordance with Enrique's instruction and that before the latter and the attesting witnesses signed it in the presence of one another,
he translated the will which was written in English to Filipino and added that Enrique was in good health and of sound mind at that time.
 68

On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon), Officer-in-Charge of the Notarial Section,
Office of the Clerk of Court, RTC, Manila. His testimony centered mainly on their findings that Atty. Nolasco was not a notary public for
the City of Manila in 1996, which on cross examination was clarified after Paraon discovered that Atty. Nolasco was commissioned as
such for the years 1994 to 1997.

Ruling of the RTC

In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to comply with Article 805 of the Civil Code
which requires a statement in the attestation clause of the number of pages used upon which the will is written. It held that while Article
809 of the same Code requires mere substantial compliance of the form laid down in Article 805 thereof, the rule only applies if the
number of pages is reflected somewhere else in the will with no evidence aliunde or extrinsic evidence required. While the
acknowledgment portion stated that the will consists of 7 pages including the page on which the ratification and acknowledgment are
written, the RTC observed that it has 8 pages including the acknowledgment portion. As such, it disallowed the will for not having been
executed and attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26, 2005. 6

Ruling of the Court of Appeals

On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the RTC erroneously granted Richard's
appeal as the Rules of Court is explicit that appeals in special proceedings, as in this case, must be made through a record on appeal.
Nevertheless, even on the merits, the CA found no valid reason to deviate from the findings of the RTC that the failure to state the number
of pages of the will in the attestation clause was fatal. It noted that while Article 809 of the Civil Code sanctions mere substantial
compliance with the formal requirements set forth in Article 805 thereof, there was a total omission of such fact in the attestation clause.
Moreover, while the acknowledgment of the will made mention of "7 pages including the page on which the ratification and
acknowledgment are written," the will had actually 8 pages including the acknowledgment portion thus, necessitating the presentation of
evidence aliunde to explain the discrepancy. Richard's motion for reconsideration from the decision was likewise denied in the second
assailed Resolution8 dated October 22, 2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.1âwphi1 (underscoring supplied)
 69

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of Article 805.

The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of the law is to
safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in this respect.
The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7 pages including the page on
which the ratification and acknowledgment are written"10 cannot be deemed substantial compliance. The will actually consists of 8 pages
including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the presentation
of evidence aliund.11 On this score is the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation
clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. 12 (Emphasis
supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that Richard pursued the wrong mode of appeal
as Section 2(a), Rule 41 of the Rules of Court explicitly provides that in special proceedings, as in this case, the appeal shall be made
by record on appeal.

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the Court of First
Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate of the Deceased Gabina
Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting to be the last
will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92 years. The heir to the entire estate of
the deceased — except the properties bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio
Salud, Santos Matias and Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof,
without bond. Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate proceedings,
the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the
petition for probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending
decision.
 70

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator of the estate
of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on February 23, 1956, on which date
the court postponed the hearing to February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned.
Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred against him by Basilia Salud
and for another postponement of said hearing. This motion was not granted, and Basilia Salud introduced evidence in support of said
charges, whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross
negligence, and, accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special
administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and
adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby
appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed special co-
administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of age, totally blind and
physically incapacitated to perform the duties of said office, and that said movant is the universal heiress of the deceased and the person
appointed by the latter as executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the
appointment of the three above named persons" — Basilia Salud, Ramon Plata and Victorina Salud — "for the management of the estate
of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia
Salud tendered her resignation as special administratrix by reason of physical disability, due to old age, and recommended the
appointment, in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but
objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias — she
(Victorina Salud) having been the principal and most interested witness for the opposition to the probate of the alleged will of the deceased
— and proposed that the administration of her estate be entrusted to the Philippine National Bank, the Monte de Piedad, the Bank of the
Philippine Islands, or any other similar institution authorized by law therefor, should the court be reluctant to appoint the movant as special
administratrix of said estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the rents due, or
which may be due, to the estate of the deceased and to collect all the produce of her lands, which was granted on June 23, 1956. On
June 27, 1956, said respondents filed another motion praying for permission to sell the palay of the deceased then deposited in different
rice mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted
the present action against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned
orders of respondent Judge, upon the ground that the same had been issued with grave abuse of discretion amounting to lack or excess
of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of the estate of the
decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the alleged will of the deceased, that
until its final disallowance — which has not, as yet, taken place she has a special interest in said estate, which must be protected by
giving representation thereto in the management of said estate; that, apart from denying her any such representation, the management
was given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata
is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious
unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17,
1956, Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court do not permit the appointment of more
than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection
therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and the produce of her
lands, as well to sell her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any abuse of
discretion; that petitioner can not validly claim any special interest in the estate of the deceased, because the probate of the alleged will
and testament of the latter — upon which petitioner relies — has been denied; that Horacio Rodriguez was duly notified of the proceedings
for his removal; and that Victorina Salud and Ramon Plata have not done anything that would warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the following reasons:
 71

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the record shows that
petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the hearing thereof. Again, notice of the
order of respondent Judge, dated February 23, 1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the appointment of Ramon Plata,
as special administrator of said estate. Petitioner had, therefore, no notice that her main opponent, Basilia Salud, and the latter's principal
witness, Victorina Salud, would be considered for the management of said. As a consequence, said petitioner had no opportunity to
object to the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order
of February 27, 1956, to this effect, denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge would not have
directed that she "be assisted and advised by her niece Victorina Salud," and that the latter "shall always act as aide, interpreter and
adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina Salud and Ramon Plata.
Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the three (3) above-named persons for the
management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and Basilia Salud regarding the
person to be appointed special administrator of the estate of the deceased. The former proposed Horacio Rodriguez, whereas the latter
urged the appointment of Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe,
Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a
pharmacist and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the
order of respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate,
amounted to a reversal of the aforementioned order of Judge Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order to this effect is
not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said alleged will being still within
realm of legal possibility, Aurea Matias has — as the universal heir and executrix designated in said instrument — a special interest to
protect during the pendency of said appeal. Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a widow,
designated as executrix in the alleged will and testament of her deceased husband, the probate of which had denied in an order pending
appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will, which is now pending appeal, because
the decision is not yet final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented by the petitioner,
and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had deemed it best to appoint more than
one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be appointed to administrator
temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case. The lower court appointed
therein one special administrator for some properties forming part of said estate, and a special administratrix for other properties thereof.
Thus, there were two (2) separate and independent special administrators. In the case at bar there is only one (1) special administration,
the powers of which shall be exercised jointly by two special co-administrators. In short, the Roxas case is not squarely in point. Moreover,
there are authorities in support of the power of courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison
vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of removal of Horacio
Rodriguez and appointment of special administrators, after due notice to all parties concerned, for action in conformity with the views
expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and Felix, JJ., concur.
 72

Matias v. Salud

G.R. No. L-10751, 23 June 1958

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was suffering from herpes zoster that afflicted
the right arm and shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina
attempted to sign, but since it was so painful she just managed to thumbmarked the foot of the document and the left margin at each
page. The parties opposing the probate of the will contended that the will was void due to the irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark cannot be regarded as the decedent’s valid signature as it does not
show distinct identifying ridgelines. And since the finger mark was an invalid signature, there must appear in the attestation clause that
another person wrote the testator’s name at his request.

ISSUE:

Whether or not the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to require dexterity that can be expected
of very few persons; testators should not be required to possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been held in a long line of cases that a thumbprint is always
a valid and sufficient signature for the purpose of complying with the requirement of the article.

Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A thumbprint is considered as a valid and
sufficient signature in complying with the requirements of the article.

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below,
is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the
other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large
room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside
room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.
 73

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other
subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal
and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of
this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact
that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument
in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of
those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not
have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually
and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his
eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine
that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of
them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes
in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as
one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. 42258 September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,

vs.
AQUILINA TOLENTINO, oppositor-appellant.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying for the
reconsideration of the decision of the court and that of the same date, praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:
 74

1. That the testatrix did not personally place her thumbmark on her alleged will;

2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where she should place
her thumbmarks;

3. That the will in question was not signed by the testatrix on the date indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to make it.

We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her brief have not been
duly considered, whether some fact or detail which might have led us to another conclusion has been overlooked, or whether the
conclusions arrived at in our decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had a slight cold on said date for which
reason she was visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her
still suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved
her mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning of the following
day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7, 1933, in the house of
the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a will and bequeath her property to the
petitioner Victorio Payad in compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad had grown
up under the care of the testatrix who had been in her home from childhood. The will was written by Attorney Almario in his own
handwriting, and was written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the presence
of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents
of the document and requested Attorney Almario to write her name where she had to sign by means of her thumbmark in view of the fact
that her fingers no longer had the necessary strength to hold a pen. She did after having taken the pen and tried to sign without anybody's
help. Attorney Almario proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her
thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to place the mark between
her name and surname, after she herself had moistened the tip of her thumb with which she made such mark, on the ink pad which was
brought to her for said purpose. Said attorney later signed the three pages of the will in the presence of the testatrix and also of Pedro L.
Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances
above stated.

In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that she never made said
will because she was no longer physically or mentally in a condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria
Quisonia, Paz de Leon and her own.

Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September 7, 1933, in the
house of the deceased where they were then living, and that the first time that they saw him there was at about 12 o'clock noon on
September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario arrived
there accompanied only by woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz
and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was situated
at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of
Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the
8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia
further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the house.
Under such circumstances it is not strange that the two did not see the testatrix when, according to the evidence for the petitioner, she
made her will and signed it by means of her thumbmark. In order to be able to see her and also Almario and the instrumental witnesses
of the will, on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room where
the will was prepared by Attorney Almario, but they did not do so.
 75

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could not move and that
she could hardly be understood because she could no longer enunciate, making it understood thereby, that in such condition it was
absolutely impossible for her to make any will. The attorney for the oppositor insists likewise and more so because, according to him and
his witness Paz de Leon, two days before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make
herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant or that of Attorney
Almario and the three instrumental witnesses of the will because, to corroborate them, we have of record the testimony of the physician
of the deceased and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of these proceedings
does not affect them in the least. The two testified that two, three or four days before the death of the testatrix, they visited her in her
home, the former professionally, and the latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a
conversation. They stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that
she could still move in spite of her weakness.

In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a letter signed by
herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that
there are witnesses competent to testify on the letter in question, in addition to other evidence discovered later, which could not be
presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that,
upon her death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased never
had and could not have had the intention to make the will in question, and (4) that said oppositor knew of the existence of said letter only
after her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named
Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion alleging that she had
discovered some additional new evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that
Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased but he did not do so because after seeing her
he had been convinced that she could not make a will because she had lost her speech and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the oppositor, are attached
to both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered evidence, and are not
admissible to warrant the holding of a new trial, because the oppositor had been informed of the facts affirmed by Attorney Jose Cortes
in his affidavit long before this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed
to the attorney for oppositor the fact that the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco,
and the judgment was rendered only on January 15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as the judgment of the
lower court was favorable to her. She, however, overlooks the fact that she also appealed from the decision of the lower court and it was
her duty, under the circumstances, to inform this court of the discovery of said allegedly newly discovered evidence and to take advantage
of the effects thereof because, by so doing, she could better support her claim that the testatrix made no will, much less the will in
question. Said evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in order that
evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a) that it could not
have been discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of such a character as
probably to change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).

The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly discovered evidence, it will
be sufficient to support the decision of the lower court and modify that of this court. It is simply hearsay or, at most, corroborative evidence.
The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or material
evidence but this court has not the letter in question before it, and no attempt was ever made to present a copy thereof.
 76

The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent than that of Attorney
Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to make her will and
he went to her house on September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak, it does not
necessarily mean that on the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental
faculties to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in
question is not and can not be newly discovered evidence of the character provided for by law, not only because it does not exclude the
possibility that testatrix had somewhat improved in health, which possibility became a reality at the time she made her will because she
was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona,
Victorio Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court of First Instance, Attorney
Viola was present, and the oppositor then could have very well called him to the witness stand, inasmuch as her attorney already knew
what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150
of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last witness Attorney
Fernando Viola who was called by the petitioner Victoria Payad to prepare the will of the deceased in his favor on September
5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? — Mr. PANIS: Your
Honor, he is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other party, Your Honor, is willing
to admit what said witness is going to testify in the sense that said Attorney Fernando Viola went to the house of the deceased
on September 5, 1933, for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if the other
party admits that, then I am going waive the presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to the other party's calling
the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been because she considered
his testimony unimportant and unnecessary, and at the present stage of the proceedings, it is already too late to claim that what said
attorney may now testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as held in the case
of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered evidence is limited to ordinary cases
pending in this court on bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby denied, ordering
that the record be remanded immediately to the lower court. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, Petitioner, vs. HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), Respondent.

Erasmo M. Diola counsel for petition.chanrobles virtual law library

 77

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No.
R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which
denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea
Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions
and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses.
The second page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the
three (3) attesting witnesses and at the left hand margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the
branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente
Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea
Perez for want of a formality in its execution. In the same order, the petitioner was also required to submit the names of the intestate
heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the
estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day
period within which to deliberate on any step to be taken as a result of the disallowance of the will. He also asked that the ten-day period
required by the court to submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the
previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station
at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position
of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same
order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply
with the order requiring him to submit the names of' the intestate heirs and their addresses. law library

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.
 78

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the witnesses, it shall be interpreted to
them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only
the testatrix signs at the "end" but an the three subscribing witnesses must also sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the
testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of
absolute necessity for the extrinsic validity of the wig that the signatures of the subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy
an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the
signatures are found is consistent with good faith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are, done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for
the purpose of Identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially
where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his
last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution
of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed
at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind
the questioned order.
 79

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will.
This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the
requirement that the attestation clause must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the win is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems
to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number
of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of
eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar
cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence
of a single witness over whose conduct she had no control where the purpose of the law to guarantee the Identity of the testament and
its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court which denied the probate of tile will, the motion
for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court
is ordered to allow the probate of the wig and to conduct further proceedings in accordance with this decision. No pronouncement on
costs.

SO ORDERED.

ARTICLE 806

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, Petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, Respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:
 80

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late
Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute
without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate
of the said last will and testament Hence this appeal by certiorari which was given due course.chanroblesvirtualawlibrarychanrobles
virtual law library

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament
of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.chanroblesvirtualawlibrarychanrobles virtual law library

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr.,
one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged.
Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator
and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the
third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by
law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the
instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and
testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to
admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary
2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed
the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other
to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer
absurdity.chanroblesvirtualawlibrarychanrobles virtual law library

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon,
50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent
position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be
thwarted.chanroblesvirtualawlibrarychanrobles virtual law library

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document
he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal,
132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting
witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:
 81

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary
public for or that purpose. In the circumstances, the law would not be duly in observed.chanroblesvirtualawlibrarychanrobles virtual law
library

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente
Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.chanroblesvirtualawlibrarychanrobles virtual law library

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

FIRST DIVISION

[ G.R. NO. 174144, April 17, 2007 ]

BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.

DECISION

CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1], siblings who fought bitterly over the inheritance of their father Isaac's
estate. Jurisprudence is also replete with cases involving acrimonious conflicts between brothers and sisters over successional rights.
This case is no exception.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis,
died at the Metropolitan Hospital in Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate of the last will and testament of the decedent in Branch 95[2] of the Regional
Trial Court of Quezon City where the case was docketed as Sp. Proc. No. Q-94-20661.

The petition alleged the following: petitioner was named as executrix in the decedent's will and she was legally qualified to act as such;
the decedent was a citizen of the Philippines at the time of her death; at the time of the execution of the will, the testatrix was 79 years
old, of sound and disposing mind, not acting under duress, fraud or undue influence and was capacitated to dispose of her estate by
will.

Respondent opposed her elder sister's petition on the following grounds: the will was not executed and attested as required by law; its
attestation clause and acknowledgment did not comply with the requirements of the law; the signature of the testatrix was procured by
fraud and petitioner and her children procured the will through undue and improper pressure and influence.

In an order dated November 9, 1994, the trial court appointed petitioner as special administratrix of the decedent's estate. Respondent
opposed petitioner's appointment but subsequently withdrew her opposition. Petitioner took her oath as temporary special
administratrix and letters of special administration were issued to her.

On January 17, 2000, after petitioner presented her evidence, respondent filed a demurrer thereto alleging that petitioner's evidence
 82

failed to establish that the decedent's will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling that Article 806 of the Civil Code was not complied
with because the will was "acknowledged" by the testatrix and the witnesses at the testatrix's, residence at No. 40 Kanlaon Street,
Quezon City before Atty. Macario O. Directo who was a commissioned notary public for and in Caloocan City. The dispositive portion of
the resolution read:

WHEREFORE, in view of the foregoing, the Court finds, and so declares that it cannot admit the last will and testament of the late
Felisa Tamio de Buenaventura to probate for the reasons hereinabove discussed and also in accordance with Article 839 [of the Civil
Code] which provides that if the formalities required by law have not been complied with, the will shall be disallowed. In view thereof,
the Court shall henceforth proceed with intestate succession in regard to the estate of the deceased Felisa Tamio de Buenaventura in
accordance with Article 960 of the [Civil Code], to wit: "Art. 960. Legal or intestate succession takes place: (1) If a person dies without a
will, or with a void will, or one which has subsequently lost its validity, xxx."

SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the appellate court dismissed the appeal and affirmed the resolution of the trial
court.[4]

Thus, this petition.[5]

Petitioner admits that the will was acknowledged by the testatrix and the witnesses at the testatrix's residence in Quezon City before
Atty. Directo and that, at that time, Atty. Directo was a commissioned notary public for and in Caloocan City. She, however, asserts that
the fact that the notary public was acting outside his territorial jurisdiction did not affect the validity of the notarial will.

Did the will "acknowledged" by the testatrix and the instrumental witnesses before a notary public acting outside the place of his
commission satisfy the requirement under Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of the Clerk of Court.
One of the formalities required by law in connection with the execution of a notarial will is that it must be acknowledged before a notary
public by the testator and the witnesses.[6] This formal requirement is one of the indispensable requisites for the validity of a will. [7] In
other words, a notarial will that is not acknowledged before a notary public by the testator and the instrumental witnesses is void and
cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going before some competent officer and declaring it to be his act or
deed.[8] In the case of a notarial will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare before an officer of the law, the
notary public, that they executed and subscribed to the will as their own free act or deed. [9] Such declaration is under oath and under
pain of perjury, thus paving the way for the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator.[10] It also provides a further degree of assurance that the testator is of a certain
mindset in making the testamentary dispositions to the persons instituted as heirs or designated as devisees or legatees in the will.[11]

Acknowledgment can only be made before a competent officer, that is, a lawyer duly commissioned as a notary public.

In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of a notary public shall be in writing, signed by the judge, and
substantially in the following form:
 83

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in said province, was on the ___ day of __________, anno Domini
nineteen hundred and _______, appointed by me a notary public, within and for the said province, for the term ending on the first day
of January, anno Domini nineteen hundred and _____.

_________________
Judge of the Court of
irst Instance[12] of said
Province

xxx xxx xxx

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a province shall be co-extensive with the province. The
jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess authority to do any notarial
act beyond the limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in his favor to perform notarial acts.[13] It is issued "within and for" a particular
territorial jurisdiction and the notary public's authority is co-extensive with it. In other words, a notary public is authorized to perform
notarial acts, including the taking of acknowledgments, within that territorial jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he is not a notary public. Any notarial act outside the limits of his jurisdiction has no force
and effect. As this Court categorically pronounced in Tecson v. Tecson:[14]

An acknowledgment taken outside the territorial limits of the officer's jurisdiction is void as if the person taking it ware wholly without
official character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City, he lacked the authority to take the acknowledgment
of the testatrix and the instrumental witnesses. In the same vein, the testatrix and her witnesses could not have validly acknowledged
the will before him. Thus, Felisa Tamio de Buenaventura's last will and testament was, in effect, not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their
validity.

The violation of a mandatory or a prohibitory statute renders the act illegal and void unless the law itself declares its continuing validity.
Here, mandatory and prohibitory statutes were transgressed in the execution of the alleged "acknowledgment." The compulsory
language of Article 806 of the Civil Code was not complied with and the interdiction of Article 240 of the Notarial Law was breached.
Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all completely void.

The Court cannot turn a blind eye to Atty. Directo's participation in the preparation, execution and unlawful "acknowledgment" of Felisa
Tamio de Buenaventura's will. Had he exercised his notarial commission properly, the intent of the law to effectuate the decedent's final
statements[15] as expressed in her will would not have come to naught. [16] Hence, Atty. Directo should show cause why he should not be
administratively sanctioned as a member of the bar and as an officer of the court.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Let a copy of this decision be furnished the Commission on Bar Discipline of the Integrated Bar of the Philippines for investigation,
report and recommendation on the possible misconduct of Atty. Macario O. Directo.

SO ORDERED.
 84

Puno, C.J., (Chairperson), Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits
D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950,
and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da.
Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were
not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded
two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were
procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated
into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same
ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and
driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one
of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to
sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the
will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone,
and returned it with the statement that no one would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the
witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and
his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each
other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage,
that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in
order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time
when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is
well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could
remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have
heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be
distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in
a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides,
the contradiction is hardly consonant with this witness' 18 years of service to the deceased.
 85

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant,
concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person
who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember
all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and
testament (like legado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in
evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended
to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and,
therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones
who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital,
the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not
do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion
of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling
past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed.
868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the
testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not
require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and
806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is
that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow
to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition.
This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco",
and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain
words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.

THIRD DIVISION

[G.R. NO. 157451 December 16, 2005]

LETICIA VALMONTE ORTEGA, Petitioner, v. JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed. In the present
case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the
part of the appellate tribunal that allowed the probate of the will.

The Case
 86

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002
Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as
follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4

The assailed Resolution denied petitioner's Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In
1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his
arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The
second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end
of the attestation clause and again on the left hand margin. It provides in the body that:

'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:

'I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro
Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties,
which belongs to me as [co-owner]:

A. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No.
123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte),
having share and share alike;

b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife
and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila,
jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be
exempt from filing a bond;
 87

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.'

"The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants;
and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing
his signature thereto;'

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and
notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition,
the oppositor Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they
came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when
to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was
made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his
attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the
executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him,
even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was
hospitalized only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator's will, testified that it was in the first week of June 1983 when
the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back
on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by
his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained
that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the
typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at the time he affixed his signature on the will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house
of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15,
 88

1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing
mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog
dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during
the execution, the testator's wife, Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings
of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke
because in 1983 Placido lived in the Makati residence and asked Leticia's family to live with him and they took care of him. During that
time, the testator's physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter
Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; andcralawlibrary

2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary
public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite
ways"6 did not make him a person of unsound mind.

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never
intended that the instrument should be his last will and testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."8

In short, petitioner assails the CA's allowance of the probate of the will of Placido Valmonte.

This Court's Ruling

The Petition has no merit.

 89

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court.
As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when,
as in the instant case, the findings of fact of the appellate court differ from those of the trial court. 9

The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed.
The law lays down the procedures and requisites that must be satisfied for the probate of a will. 10 Verily, Article 839 of the Civil Code
states the instances when a will may be disallowed, as follows:

"Article 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."

In the present case, petitioner assails the validity of Placido Valmonte's will by imputing fraud in its execution and challenging the testator's
state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances
surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator's wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage
with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention
of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience" 12 for an
old man with a severe psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he
would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. 14 The burden
to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other
than the self-serving allegations of petitioner, no evidence of fraud was ever presented.
 90

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. 16 That the testator was tricked into
signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in
his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document,
"because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion." 18 More important,
the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of
the testator and of one another.19 Furthermore, the testator and the witnesses must acknowledge the will before a notary public. 20 In any
event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and
persuasively explained by the notary public and the instrumental witnesses." 21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 - -
as quoted by the CA - - are reproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your
office?chanroblesvirtualawlibrary

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?chanroblesvirtualawlibrary

A They did as of agreement but unfortunately, I was out of town.

xxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when
the document was acknowledged?chanroblesvirtualawlibrary

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of
exhibit C?chanroblesvirtualawlibrary

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation
clause?chanroblesvirtualawlibrary

A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated August 9, 1983,
will you look at this document and tell us this discrepancy in the date?chanroblesvirtualawlibrary

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento
told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there.
 91

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?chanroblesvirtualawlibrary

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?chanroblesvirtualawlibrary

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxx

A The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento
and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were
not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?chanroblesvirtualawlibrary

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?chanroblesvirtualawlibrary

A Yes, Sir.

Q For what purpose?chanroblesvirtualawlibrary

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?chanroblesvirtualawlibrary

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the
witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due execution. 23 Their testimony favoring it and the finding that it was executed in accordance
with the formalities required by law should be affirmed, absent any showing of ill motives. 24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or shattered by disease, injury or other cause.
 92

"It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper
objects of his bounty, and the character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.

"The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains
the validity of the will must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows:
(1) the nature of the estate to be disposed of, (2) the proper objects of the testator's bounty, and (3) the character of the testamentary
act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity
at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing
of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:

"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that
degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and
while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." 26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED. Costs against
petitioner.

SO ORDERED.

ARTICLE 808

[ G.R. No. 74695, September 14, 1993 ]

IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF THE DECEASED BRIGIDO ALVARADO, CESAR
ALVARADO, PETITIONER, VS. HON. RAMON G. GAVIOLA, JR., PRESIDING JUSTICE, HON. MA. ROSARIO QUETULIO LOSA AND
HON. LEONOR INES LUCIANO, ASSOCIATE JUSTICES, INTERMEDIATE APPELLATE COURT, FIRST DIVISION (CIVIL CASES),
AND BAYANI MA. RINO, RESPONDENTS.

DECISION

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986[1] of the First Civil Cases Division of the then Intermediate Appellate Court,
now Court of Appeals, which affirmed the Order dated 27 June 1983 [2] of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament[3] with codicil[4] of the late Brigido Alvarado.
 93

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch of
the Regional Trial Court of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month,
a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni
Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido
was then suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it aloud in his presence and in
the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using
their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.[5] Petitioner, in turn, filed an Opposition on
the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane
or otherwise mentally incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear or threats; that it was procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June
1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil attached thereto were executed; that since the reading required by Art.
808 of the Civil Code was admittedly not complied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind
at the time his last will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially
complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents of the drafted will
was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he had
been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:
"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged."
Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within
the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye Research institute), [6] the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent.[7] Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation. [8]
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and
the codicil were executed but chose not to do so because of "poor eyesight." [9] Since the testator was still capable of reading at that time,
the court a quo concluded that Art. 808 need not be complied with.
 94

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared,
the fact remains and this was testified to by his witnesses, that Brigido did not do so because of his "poor," [10] "defective,"[11] or
"blurred"[12] vision making it necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez[13] provides an insight into the scope of the term "blindness" as used in Art. 808, to
wit:
"The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when
he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his
wishes x x x x"
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable
of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions
of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses
and, again, by the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the
contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer
(private respondent) who drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them
only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law.
On the other hand, petitioner maintains that the only valid compliance is a strict compliance or compliance to the letter and since
it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the
latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied,
the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and
trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. [14]
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does
not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary,
with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and authenticity of
the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely
for the purpose of securing his conformity to the draft.[15]
Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr.
Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of
the documents were of his own free will. Brigido answered in the affirmative.[16] With four persons following the reading word for word
with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
 95

The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only defeat the testator's will. [17]
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote
the following pronouncement in Abangan v. Abangan,[18] to wit:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution
of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on the 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
will, must be disregarded" (underscoring supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto.
We are unwilling to cast these aside for the mere reason that a legal requirement intended for his protection was not followed strictly
when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated
testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial compliance suffices where the
purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986
is AFFIRMED. Considering the length of time that this case has remained pending, this decision is immediately executory. Costs against
petitioner.
SO ORDERED.

Cruz, (Chairman), Griño-Aquino, Davide, Jr., and Quiason, JJ., concur.

EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch and
CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila, Branch V,
REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner
administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN MAURICIO,
REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO
JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO
and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales Vda. de Precilla.
 96

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.

Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del Rosario Sarmiento, Et. Al.

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIX’S DEFECTIVE
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL.— The declarations in court of the opthalmologist as
to the condition of the testatrix’s eyesight fully establish the fact that her vision remained mainly for viewing distant objects and not for
reading print; that she was, at the time of the execution of the second will on December 29, 1960, incapable of reading and could not
have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, apparently to save on
space. Plainly, the testament was not prepared with any regard for the defective vision of Dña. Gliceria, the typographical errors
remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand
that so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and
untidy written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE — READING OF THE WILL
TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself is to make the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will there is nothing in the record to
show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is blind, the will shall be read to him twice,"
have not been complied with, the said 1960 will suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL;
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR.— Considering that the alleged deed of sale was executed when Gliceria del Rosario was
already practically blind and that the consideration given seems unconscionably small for the properties, there was likelihood that a
case for annulment might be filed against the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the
alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to the estate. This,
plus her conduct in securing new copies of the owner’s duplicate of titles without the court’s knowledge and authority and having the
contract bind the land through issuance of new titles in her husband’s name, cannot but expose her to the charge of unfitness or
unsuitability to discharge the trust, justifying her removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF POSSESSION OF REAL
PROPERTY." — On the matter of lis pendens, the provisions of the Rules of Court are clear: notice of the pendency of an action may
be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or the
right of possession of (such) real property."cralaw virtua1aw library
 97

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the fitness or unfitness of said
special administratrix to continue holding the trust, it does not involve or affect at all the title to, or possession of, the properties covered
by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in
the record of the titles to the properties.

DECISION

REYES, J.B.L., J.:

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the
alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are
separate petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the probate court to remove
Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to appoint a new one in her stead; and (2)
to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the
name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased
Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents, ascendants, brother or
sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an estate consisting mostly of real
properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of First Instance of
Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and for her
appointment as special administratrix of the latter’s estate, said to be valued at about P100,000.00, pending the appointment of a
regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will
executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960
wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3)
Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala
Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio, — the latter five
groups of persons all claiming to be relatives of Doña Gliceria within the fifth civil degree. The oppositions invariably charged that the
instrument executed in 1960 was not intended by the deceased to be her true will; that the signatures of the deceased appearing in the
will was procured through undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the
testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the formalities
required by law for such execution have not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr. Jaime Rosario in
registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioner’s prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The order was
premised on the fact the petitioner was managing the properties belonging to the estate even during the lifetime of the deceased, and
to appoint another person as administrator or co administrator at that stage of the proceeding would only result in further confusion and
difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to require the Hongkong &
Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965. The court denied this motion
on 22 October 1965 for being premature, it being unaware that such deposit in the name of the deceased existed. 1
 98

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga, Natividad de Jesus and
Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special administratrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent
deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3
parcels of land and the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00.
Oppositors contended that since it is the duty of the administrator to protect and conserve the properties of the estate, and it may
become necessary that, an action for the annulment of the deed of sale land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to deposit with the Clerk
of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965, or after her appointment, petitioner
Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario, filed
with Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of the owner’s duplicates of certain
certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in the preparation of the inventory" of the properties
constituting the estate. The motion having been granted, new copies of the owner’s duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December
1965, according to the oppositors, the same special administratrix presented to the Register of Deeds the deed of sale involving
properties covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of
Alfonso Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737)
were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the
due execution of the will, the probate court took note that no evidence had been presented to establish that the testatrix was not of
sound mind when the will was executed; that the fact that she had prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not
render the latter invalid; that, the erasures and alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had already shown capacity to administer the properties of the estate
and that from the provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this Court as
G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December 1965 for the removal of the then
special administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix and to appoint another one in her stead, is in
order that an action may be filed against the special administratrix for the annulment of the deed of sale executed by the decedent on
January 10, 1961. Under existing documents, the properties sold pursuant to the said deed of absolute sale no longer forms part of the
estate. The alleged conflict of interest is accordingly not between different claimants of the same estate. If it is desired by the movants
that an action be filed by them to annul the aforesaid deed absolute sale, it is not necessary that the special administratrix be removed
and that another one be appointed to file such action. Such a course of action would only produce confusion and difficulties in the
settlement of the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to secure the nullity of
the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the decedent, the same was also
denied, for the reason that if the movants were referring to the old titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special administratrix, there would be no necessity therefor, because
they were already cancelled and other certificates were issued in the name of Alfonso Precilla. This order precipitated the oppositors’
filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez,
Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of Deeds of Manila to
annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And when said
official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to
 99

annotate a lis pendens notice in the aforementioned titles contending that the matter of removal and appointment of the administratrix,
involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this motion on 12 November
1966, oppositors filed another mandamus action, this time against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime, executed two
wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29
December 1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco
Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly declared that they
were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to witness the execution of the last
will of Doña Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in
the afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind, although she was being
aided by Precilla when she walked; 3 that the will, which was already prepared, was first read "silently" by the testatrix herself before
she signed it; 4 that he three witnesses thereafter signed the will in the presence of the testatrix and the notary public and of one
another. There is also testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary
act and deed, the notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped
together; 5 that after comparing them with the numbers already written on the will, the notary public filled in the blanks in the instrument
with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that on that occasion no pressure
or influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from the records. The will
appeared to have been prepared by one who is not conversant with the spelling of Tagalog words, and it has been shown that Alfonso
Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8
admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria del Rosario on
29 December 1960 to witness an important document, 10 and who took their residence certificates from them a few days before the will
was signed. 11 Precilla had met the notary public and witnesses Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the document took place; 12 then he fetched witness Decena from
the latter’s haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when the will was actually
executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the probate court’s ruling, maintain that on 29
December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said ophthalmologist, whose
expertise was admitted by both parties, testified, among other things, that when Doña Gliceria del Rosario saw him for consultation on
11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you could inform the
court as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty feet.
 100

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital on 8 August 1960; as
of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The cross-examination of the doctor
further elicited the following responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later glasses were
prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I operated — she could see
only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria del Rosario was
provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report was made on pure
recollections and I recall she was using her glasses although I recall also that we have to give her medicines to improve her vision,
some medicines to improve her identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and removal of the
cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant
objects and not for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there
is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and could not have read the
 101

provisions of the will supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she
read the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires striking
significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a
single sheet of paper, to much so that the words had to be written very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like "HULINH" for "HULING" (last),
"Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge’’,
remained uncorrected, thereby indicating that execution thereof must have been characterized by haste. It is difficult to understand that
so important a document containing the final disposition of one’s worldly possessions should be embodied in an informal and untidily
written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the
purported will and had done so. The record is thus convincing that the supposed testatrix could not have physically read or understood
the alleged testament, Exhibit "D", and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the
alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves; that she was
able to read a closely typed page, since the acts shown do not require vision at close range. It must be remembered that with the
natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses being rigid and
uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so that one need only to have a rough
indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks,
amplified in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks are written far above the printed base, lines, and the names of the payees as
well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand
than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not
unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil
Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the
notary public before whom the will is acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he
is illiterate), 18 is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his
wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the
latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of his (the testator’s) other
senses. 19

In connection with the will here in question, there is nothing in the records to show that the above requisites have been complied with.
Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate court of their petition for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No.
L-26615, Annex "B").

The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest adverse to that of the estate. It
was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10
January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y
Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that since the properties
 102

were already sold no longer form part of the estate. The conflict of interest would not be between the estate and third parties, but
among the different claimants of said properties, in which case, according to the court, the participation of the special administratrix in
the action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the conveyance or sale of
the properties. In short, if proper, the action for annulment would have to be undertaken on behalf of the estate by the special
administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is that only where there is no special
proceeding for the settlement of the estate of the deceased may the legal heirs commence an action arising out of a right belonging to
their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and separate action would
have to be instituted, the matter not falling within the competence of the probate court. 22 Considering the facts then before it, i.e., the
alleged deed of sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and
that the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value of P334,050.00,
there was likelihood that a case for annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property
that may turn out to belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the
owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the pretext that she
needed them in the preparation of the inventory of the estate, when she must have already known by then that the properties covered
therein were already "conveyed" to her husband by the deceased, being the latter’s successor, and having the contract bind the land
through issuance of new titles in her husband’s name cannot but expose her to the charge of unfitness or unsuitableness to discharge
the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong and Shanghai Bank to report
all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the motion for annotation of a lis pendens
notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on the complaint against
the alleged withdrawals from the bank deposits of the deceased, because as of that time the court had not yet been apprised that such
deposits exist. Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to
by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her lifetime but cleared only after
her death. That explanation, which not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any
charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the pendency of an action
may be recorded in the office of the register of deeds of the province in which the property is situated, if the action affects "the title or
the right of possession of (such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in the
records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As previously
discussed in this opinion, however, that case is concerned merely with the correctness of the denial by the probate court of the motion
for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short,
the issue in controversy there is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and the court below
is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased
Doña Gliceria Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate to recover the
properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.

Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur.

Zaldivar and Castro, JJ., took no part.

 103

Barredo, J., is on leave.

ARTICLE 809

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA,
RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause
contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article
809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his
life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo,
Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch
II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29,
1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of
the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of
the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where
it remained until the conclusion of the probate proceedings.6
 104

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance
of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that
he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the
testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator
executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also
testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit
"D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested
that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also
signed the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause
in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy complied
with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim
to be defective is "we do certify that the testament was read by him and the attestator, Mateo Caballero, has published
unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and
every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said
testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said
will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as
the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner
 105

not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute.14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof
in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness. 15 hence it is likewise
known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do
so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again,
by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator
himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that
they should be in writing and must have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator
since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not
even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by
law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution
of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will
and every page thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator
and of one another.
 106

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages;23 whereas the subscription
of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates
that the will is the very same instrument executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation
clause.25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only by them.27 Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the
testator and its witnesses.28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of
wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing
his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the
foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed
at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility
of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our
respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO;
has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the
same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of
the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of
one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required
to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of
the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by
a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this
is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph
of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the
testator and of each other. We agree.
 107

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator
indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at
first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing
in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result
in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved
that the will was in fact executed and attested in substantial compliance with all the requirements of article 805"
(Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the
presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days
or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application
of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases
with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether
the subscribing witnesses are three or the will was notarized. All theses are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number
of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or
the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation
has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and
every page of the will in the presence of the testator and of each other.35 In such a situation, the defect is not only in the form or language
of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into
the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing
by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
 108

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that
the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which
would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the
acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must
be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may
be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with
such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same
and would accordingly be doing by the indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should
be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later
amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan,36 where it was
held 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 guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted
in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that 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, hence 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. The subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41 and Nayve vs. Mojal, et al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills
are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923],
46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series
of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922],
43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions
cited by opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective,
and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal
and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it
was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing
of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held
that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to state such evident facts does not
invalidate the will.
 109

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here,
unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely
on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal,
decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions;
the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In
the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61
of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It
is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the
same section that "The attestation shall state the number of sheets or pages used, upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed
in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention.
It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming
diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata,49 Rodriguez vs. Alcala,50 Enchevarria vs.
Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey
vs. Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs.
Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation rule and established a trend
toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction,
recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give
a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of
the Code Commission:

The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines
had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section
618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude
into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner
of executing wills, article 829 of the Project is recommended, which reads:
 110

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit
a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself. 67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE.
The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

ARTICLE 810

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased),
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as provided for in Article
8102 of the New Civil Code.

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-
1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the
court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio
Labrador.
 111

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a
Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter
of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land
to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed
of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador under
a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985,
allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion
for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL
OF THE TESTATOR MELECIO LABRADOR; and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR, also their sister, and the boundary in the West is the sea,
known as the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise
is also their brother. That because it is now the time for me being now ninety three (93) years, then I feel it is the right time for
me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there
shall be no differences among themselves, those among brothers and sisters, for it is I myself their father who am making the
apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any
cause of troubles or differences among the brothers and sisters.
 112

II — Second Page

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

Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that
any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they
will be in good relations among themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of
bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall
complain against the other, and against anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is located, the same being the fruits of our earnings
of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefitted with all
those property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of the truth and of
the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied
with, by all the brothers and sisters, the children of their two mothers — JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

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

The will has been dated in the hand of the testator himself in perfect compliance with Article 810.1âwphi1 It is worthy of note to quote the
first paragraph of the second page of the holographic will, viz:

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

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

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

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of
and of the character of the testamentary act as a means to control the disposition of his estate.
 113

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with
the will. Petitioners therefore deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of
Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum
of Five Thousand Pesos (P5,000.00).

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS
& PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On
May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood
 114

English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by
their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana
R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress,
undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the
said Will to be her last Will and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should
contain the day, month and year of its execution and that this should be strictly complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on
the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed
for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be
witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state
in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y dia and simply
requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should
prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the
New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the
Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is
invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing
his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
 115

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that
any disposition made by the testator is better than that which the law can make. For this reason, intestate succession
is nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should
be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).

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

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476,
where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day,
or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency
in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and
due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case
at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the
only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code,
probate of the holographic Will should be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

 116

ARTICLE 811

G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.

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

Vicente J. Cuna and P.S. Singson for appellee.

REYES, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for
probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole
heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic
will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the
testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and
that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence
is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in
answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must
have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same
witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance,
he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in
the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and
influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not
questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:
 117

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one
witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under
penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required
by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter
beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses
"who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even
if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is
had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57
Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely
because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that
what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses
is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence.
On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested
as the proponent that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol.
12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por
lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad
del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con
que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento
olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para
eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y
dudaran o no estos respecto de los extremos por que son preguntados.
 118

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder
debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure
to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including
expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

[G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO,
and EUFEMIA PATIGAS, Respondents.

DECISION

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals 1 and its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed
presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts
and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator
Matilde Seo Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the
holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and
the will was written voluntarily.
 119

The assessed value of the decedents property, including all real and personal property was about P400,000.00, at the time of her
death.4cräläwvirtualibräry

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible. This gives an impression that a third hand of an interested party other
than the true hand of Matilde Seo Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary. If the
deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the
deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic
will of the deceased Matilde Seo Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the
petition for probate of the document (Exhibit S) on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for
insufficiency of evidence and lack of merits. 7

On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic
will of the deceased was filed. He produced and identified the. records of the case. The documents presented bear the signature of the
deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and identify the voters affidavit of the decedent.
However, the voters affidavit was not produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of Matildes
husband, the latter lived with her in her parents house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased
Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and the deceased always issued
receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated
August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all
the pleadings and documents signed by the deceased in connection with the intestate proceedings of her late husband, as a result of
which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that
of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
 120

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region
10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the
deceased, since the deceased signed documents in her presence, when the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted
by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature
appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelrys shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd)Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

"August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

 121

(Sgd) Matilde Vda de Ramonal

"August 30,1978

Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of
Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

x x x even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code
can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under
penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being
required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a
matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be
witnesses who know the handwriting and signature of the testator and who can declare (truthfully, of course, even if the law does not
express) that the will and the signature are in the handwriting of the testator. There may be no available witness acquainted with the
testators hand; or even if so familiarized, the witness may be unwilling to give a positive opinion. Compliance with the rule of paragraph
1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony
may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is
had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57
PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely
because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art.
805). Where the will is holographic, no witness need be present (art.10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.

Again, under Art.811, the resort to expert evidence is conditioned by the words if the court deem it necessary, which reveal that what the
law deems essential is that the court should be convinced of the wills authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort
to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the
having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production
of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its
duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator
be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can
 122

be drawn from a partys failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate.

Hence, this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.

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

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word shall connotes a mandatory
order. We have ruled that shall in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in a statute is mandatory. 11cräläwvirtualibräry

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who
for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of
the testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was
that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voters
affidavit, which was not even produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you
tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time?

A. Collecting rentals.

Q. From where?
 123

A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12

xxx

Q. Who sometime accompany her?

A. I sometimes accompany her

Q. In collecting rentals does she issue receipts?

A. Yes, sir.13

xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to
them?

A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?

A. Matilde vda. De Ramonal.

Q. Why do you say that that is a signature of Matilde vda. De Ramonal?

A. I am familiar with her signature.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten.14

xxx

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to
acquire familiarity of the signature of Matilde Vda De Ramonal?

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?
 124

A. Matilde

Q. To whom?

A. To her creditors.15

xxx

Q. You testified that at the time of her death she left a will. I am showing to you a document with its title tugon is this the document you
are referring to?

A. Yes, sir.

Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is this?

A. My aunt.

Q. Why do you say this is the handwriting of your aunt?

A. Because I am familiar with her signature. 16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings
of the deceased but was in the possession of Ms. Binanay. She testified that:

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

Q. Since when did you have the possession of the will?

A. It was in my mothers possession.

Q. So, it was not in your possession?

A. Sorry, yes.

Q. And when did you come into possession since as you said this was originally in the possession of your mother?

A. 1985.17

xxx

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession?

A. It was not given to me by my mother, I took that in the aparador when she died.
 125

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

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde
Seo Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that
correct?

A. Yes, sir.19

xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?

A. Yes, a little. The letter L is continuous.

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

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?

A. Yes, sir.20

xxx

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This
is dated January 8,1978 which is only about eight months from August 30,1978. Do you notice that the signature Matilde Vda de Ramonal
is beautifully written and legible?

A. Yes, sir the handwriting shows that she was very exhausted.
 126

Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she
was exhausted?

A. In writing.

Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the
apparent inconsistencies?

A. That was I think. (sic)

Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that
there is no retracing; there is no hesitancy and the signature was written on a fluid movement. x x x And in fact , the name Eufemia R.
Patigas here refers to one of the petitioners?

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as
Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that?

A. Yes, sir.21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that:

Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the
court the services if any which you rendered to Matilde Ramonal?

A. During my stay I used to go with her to the church, to the market and then to her transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.

Q. What was your purpose of going to her lawyer?

A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth. 22

xxx

Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there is a signature here below item No. 1, will
you tell this court whose signature is this?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

 127

A. I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived
with her since birth. She never declared that she saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal.24

xxx

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children?

A. As far as I know they have no legitimate children. 25

xxx

Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

A. I assisted her in terminating the partition, of properties.

Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?

A. It is about the project partition to terminate the property, which was under the court before.26

xxx

Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and
there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this?

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27

xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?

A. I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can recall.28
 128

xxx

Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document, Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that document marked as exhibit S?

A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this?

A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q. Why do you say that?

A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose signature is this?

A. The same is true with the signature in item no. 4. It seems that they are similar. 29

xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be
her signature because it is similar to the signature of the project of partition which you have made?

A. That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses
in case of contested holographic will, citing the decision in Azaola vs. Singson,31 ruling that the requirement is merely directory and not
mandatory.

In the case of Ajero vs. Court of Appeals, 32 we said that the object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic
will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.
 129

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of
the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before
the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer
of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature
in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by
the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures
on the will.

Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the application
letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot
be certain that the holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.

No costs.

SO ORDERED.

Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

EN BANC

[G.R. No. L-12190. August 30, 1958.]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, Petitioner-Appellant, v. ILDEFONSO YAP,
Oppositor-Appellee.

Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.

Arturo M. Tolentino for Appellee.

SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. — The execution and the contents
of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity.

DECISION

BENGZON, J.:
 130

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties
in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in these words:jgc:chanrobles.com.ph

"Nobyembre 5, 1951

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan
ay aking ipinamamana sa aking mga kamaganakang sumusunod:chanrob1es virtual 1aw library

Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi

Rosario E. Gan 2 Bahagi

Filomena Alto 1 Bahagi

Beatriz Alto 1 Bahagi

‘At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap sa
kondisyong siya’y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking pañgalang Felicidad Esguerra-Alto. At kung ito ay may kakulañgan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.’

(Lagda) Felicidad E. Alto-Yap"

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament
during her lifetime.

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:chanrob1es
virtual 1aw library

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided
the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and
on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to
read the will in the presence of Felina Esguerra, who again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again
in the presence of Felina Esguerra, who read it for the third time.

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid
 131

of him by reason of his well-known violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse
to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2

From the oppositor’s proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death;
that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the
most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised
and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physician’s help
was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high
by her husband. Injections and oxygen were administered. Following the doctor’s advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.

The trial judge refused to credit the petitioner’s evidence for several reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will
from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to
believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his
back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor’s evidence that Felicidad did not and could not have
executed such holographic will.

In this appeal, the major portion of appellant’s brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor’s brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go
over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of
the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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."cralaw virtua1aw library

This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950)
required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the
number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and
of each other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authenticity (Abangan v. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez v. Yap, 40 Off. Gaz. Ist Supp. No. 3
p. 194.) .
 132

Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance. For that
purpose the testimony of one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang v. Delfinado 34 Phil., 291; Tolentino v. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and
the circumstances of its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code,
"it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence
of any such witnesses, (familiar with decedent’s handwriting) and if the court deem it necessary, expert testimony may be resorted
to."cralaw virtua1aw library

The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the testator’s hand. However, the oppositor may present other witnesses who
also know the testator’s handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased,
have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view
of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it
has indeed been written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the
only guaranty of authenticity 3 — the testator’s handwriting — has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator’s
handwriting? His witnesses who know testator’s handwriting have not examined it. His experts can not testify, because there is no way
to compare the alleged testament with other documents admittedly, or proven to be, in the testator’s hand. The oppositor will, therefore,
be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent’s witnesses may be honest and truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a
document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify
as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased’s handwriting.
And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as
to the contents of the will. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence — the
testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) .

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 — an implied
admission that such loss or theft renders it useless.

This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by
the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All
these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse
and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with
 133

respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting
such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it.
Obviously, this they can’t do unless the will itself is presented to the Court and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or
to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.

We find confirmation of these ideas — about exhibition of the document itself — in the decision of the Supreme Court of Spain of June
5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased,
but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence
(which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with
the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.

"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea
valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque,
resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se
otorgaron se llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se
emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la
Autoridad competente, para su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . ."cralaw virtua1aw library

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter. 6

"PRECEDENTES LEGALES — Fuero Juzgo, libro segundo, titulo V, ley 15 — E depues que los herederos e sus fijos ovieren esta
manda, fasta . . . annos muestrenla al obispo de la tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos,
que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la
manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y
en esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they
are shown his handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. 8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of
such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E.
Gan.

At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is
 134

the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to
authenticate.

In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could
be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their
intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to any
fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after
making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm
its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors
have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most
important ones, may go undetected.

If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law. 10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.

Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge’s disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a
share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal
the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband’s
trip to Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein
petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule
77, sec. 6. 11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

 135

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of
Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as
Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days
of the death of the testator as required by Rule 75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce
no effect, as held in Gam v. Yap, 104 Phil. 509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion
was granted by the court in an order dated April 4, 1977.

On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979,
the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in
lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law,
it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent
had discarded before his death his allegedly missing Holographic Will.
 136

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

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

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

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

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

The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has
been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has
been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a
lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But,
in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested
before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then
the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

ARTICLE 814

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.

 137

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."
 138

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.