Succession

FULL TEXT CASE_ART. 798, 799, 800

G.R. No. 108581 December 8, 1999

LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of
VICENTE DOROTHEO and JOSE DOROTHEO, respondents.
 
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has
become final and executory still be given effect? This is the issue that arose from the following
antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The
latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977,
after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a
special proceeding for the probate of the latter's last will and testament. In 1981, the court issued
an order admitting Alejandro's will to probate. Private respondents did not appeal from said order.
In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the
motion and issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes
Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will
and testament of Alejandro Dorotheo as intrinsically void, and declaring the
oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the
only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose
respective estates shall be liquidated and distributed according to the laws on
intestacy upon payment of estate and other taxes due to the government. 1

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she
took care of Alejandro prior to his death although she admitted that they were not married to each
other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals,
but the same was dismissed for failure to file appellant's brief within the extended period
granted.  This dismissal became final and executory on February 3, 1989 and a corresponding entry
2

of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was
issued by the lower court to implement the final and executory Order. Consequently, private
respondents filed several motions including a motion to compel petitioner to surrender to them the
Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner
refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and
for issuance of new titles in their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and
executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of
execution, on the ground that the order was merely "interlocutory", hence not final in character. The
court added that the dispositive portion of the said Order even directs the distribution of the estate
of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of
Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private
respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse
of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge
Angas cannot be said to have no jurisdiction because he was particularly designated to hear the
case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the
January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier
admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to
maintain the status quo or lease of the premises thereon to third parties.  Private respondents
3

opposed the motion on the ground that petitioner has no interest in the estate since she is not the
lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the entry of judgment made by the Court of
Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a
superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of
review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the
whole world.  4

It has been consistently held that if no appeal is taken in due time from a judgment or order of the
trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became
final and the question determined by the court in such order can no longer be raised anew, either in
the same proceedings or in a different motion. The matters of due execution of the will and the
capacity of the testator acquired the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being for once and forever closed.  Such final
5

order makes the will conclusive against the whole world as to its extrinsic validity and due
execution. 6

It should be noted that probate proceedings deals generally with the extrinsic validity of the will
sought to be probated,  particularly on three aspects:
7

n whether the will submitted is indeed, the decedent's

last will and testament;
n compliance with the prescribed formalities for the
execution of wills;
n the testamentary capacity of the testator;  8

n and the due execution of the last will and

testament.
9

Under the Civil Code, due execution includes a determination of whether the testator was of sound
and disposing mind at the time of its execution, that he had freely executed the will and was not
acting under duress, fraud, menace or undue influence and that the will is genuine and not a
forgery,   that he was of the proper testamentary age and that he is a person not expressly
10

prohibited by law from making a will.  11

The intrinsic validity is another matter and questions regarding the same may still be raised even
after the will has been authenticated.   Thus, it does not necessarily follow that an extrinsically valid
12

last will and testament is always intrinsically valid. Even if the will was validly executed, if the
testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful
inheritance according to the laws on succession,   the unlawful provisions/dispositions thereof
13

cannot be given effect. This is specially so when the courts had already determined in a final and
executory decision that the will is intrinsically void. Such determination having attained that
character of finality is binding on this Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and executory decision of which the party had
the opportunity to challenge before the higher tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party
does not avail of other remedies despite its belief that it was aggrieved by a decision or court action,
then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it
has been declared that public policy and sound practice demand that, at the risk of occasional
errors, judgments of courts must at some point of time fixed by law   become final otherwise there
14

will be no end to litigation. Interes rei publicae ut finis sit litium — the very object of which the
courts were constituted was to put an end to controversies.   To fulfill this purpose and to do so
15

speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful.   The 16

only instance where a party interested in a probate proceeding may have a final liquidation set aside
is when he is left out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence,   which circumstances do not concur herein.
17

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were declared as the only heirs do not bind those
who are not parties thereto such as the alleged illegitimate son of the testator, the same
constitutes res judicata with respect to those who were parties to the probate proceedings.
Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to
forum-shopping. It should be remembered that forum shopping also occurs when the same issue
had already been resolved adversely by some other court.   It is clear from the executory order that
18

the estates of Alejandro and his spouse should be distributed according to the laws of intestate
succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set
aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who
are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require
delivery of shares from one person to another particularly when no project of partition has been
filed."   The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of
19

Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same
time it nullified the will. But it should be noted that in the same Order, the trial court also said that
the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has
no option but to implement that order of intestate distribution and not to reopen and again re-
examine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that
testacy is preferred to intestacy.   But before there could be testate distribution, the will must pass
20

the scrutinizing test and safeguards provided by law considering that the deceased testator is no
longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the
estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur
donare.   No intestate distribution of the estate can be done until and unless the will had failed to
21

pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply
regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its
intrinsic validity — that is whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the
intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial
court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his
late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final
and executory order. Testamentary dispositions of properties not belonging exclusively to the
testator or properties which are part of the conjugal regime cannot be given effect. Matters with
respect to who owns the properties that were disposed of by Alejandro in the void will may still be
properly ventilated and determined in the intestate proceedings for the settlement of his and that of
his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not
married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.

ART 799

G.R. No. 174489               April 11, 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

Before us is a Petition for Review on Certiorari of the June 15, 2006 Decision of the Court of Appeals
2  3 

(CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision of the Regional Trial
4 

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 which denied the Motion for
6 

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 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" (Will) in the Pampango dialect on September 13, 1981.
7 

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 and then on the left margin of pages 1, 2 and 4 thereof.
8  9

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 and on the left margin of pages 1, 2 and 4
10 

thereof, in the presence of Paciencia and of one another and of Judge Limpin who acted as notary
11 

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:

xxxx

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;

xxxx

[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. Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga and it was she who
13 

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 with
14 

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 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified
15 

that she was one of the instrumental witnesses in the execution of the last will and testament of
Paciencia on September 13, 1981. The Will was executed in her father’s (Judge Limpin) home
16 

office, in her presence and of two other witnesses, Francisco and Faustino. Dra. Limpin positively
17 

identified the Will and her signatures on all its four pages. She likewise positively identified the
18 
signature of her father appearing thereon. Questioned by the prosecutor regarding Judge Limpin’s
19 

present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo
brain surgery. The judge can walk but can no longer talk and remember her name. Because of this,
20 

Dra. Limpin stated that her father can no longer testify in court. 21

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition to22 

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. 23

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 contending that Paciencia’s Will was null
24 

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. Petitioners also opposed
25 

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. Petitioners prayed that Letters of
26 

Administration be instead issued in favor of Antonio. 27

Later still on September 26, 2000, petitioners filed an Amended Opposition asking the RTC to deny
28 

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 reiterating their opposition to the appointment of Lorenzo
29 

as administrator of the properties and requesting for the appointment of Antonio in his stead.

On January 29, 2001, the RTC issued an Order denying the requests of both Lorenzo and Antonio to
30 

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.  32

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. Lorenzo positively identified the signature of Paciencia in three different
33 

documents and in the Will itself and stated that he was familiar with Paciencia’s signature because
he accompanied her in her transactions. Further, Lorenzo belied and denied having used force,
34 

intimidation, violence, coercion or trickery upon Paciencia to execute the Will as he was not in the
Philippines when the same was executed. On cross-examination, Lorenzo clarified that Paciencia
35 

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. 36

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. She claimed to have 37 

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. She served in the said household from 1980 until
38 

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. Rosie admitted, though, that she did not see what that "something" was
40 

as same was placed inside an envelope. However, she remembered Paciencia instructing Faustino
41 

to first look for money before she signs them. A few days after or on September 16, 1981, Paciencia
42 

went to the house of Antonio’s mother and brought with her the said envelope. Upon going home, 43 

however, the envelope was no longer with Paciencia. Rosie further testified that Paciencia was
44 

referred to as "magulyan" or "forgetful" because she would sometimes leave her wallet in the
kitchen then start looking for it moments later. On cross examination, it was established that Rosie
45 

was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan" was
based on her personal assessment, and that it was Antonio who requested her to testify in court.
46  47

In his direct examination, Antonio stated that Paciencia was his aunt. He identified the Will and
48 

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. Antonio alleged that when the documents were shown to him, the same were still
49 

unsigned. According to him, Paciencia thought that the documents pertained to a lease of one of
50 

her rice lands, and it was he who explained that the documents were actually a special power of
51 

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. Upon hearing 52 

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?" Thereafter, Antonio advised Paciencia not to
53 

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." After which, 54 

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 denying the petition thus: 56 

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." Moreover, the oppositors
59 

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 but the motion was denied by the CA in its Resolution dated
61  62 

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.

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

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. These
65 

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 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 filed with the CA that Paciencia was not only "magulyan" but was actually suffering
66 

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. Forgetfulness is not equivalent
68 

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." More importantly, a testator is presumed to be of sound mind at the time of the
69 

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.

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. Furthermore, "a purported will is not [to be] denied legalization on
71 

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.

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 
1âwphi1

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." "The 74 

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." This, coupled with Lorenzo’s established relationship with Paciencia, the evidence and the
75 

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.

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.

EN BANC

G.R. No. L-6801 March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee, vs. ISIDRO PAGUIO, ET AL., Defendants-Appellants.

Salas and Kalaw for appellants.

Jose Santiago for appellee.
TRENT, J. :chanrobles virtual law library

This is an appeal from an order of the Court of First Instance of the Province of Bataan,
admitting to probate a document which was offered as the last will and testament of Pioquinto
Paguio y Pizarro. The will purports to have been executed in the pueblo of Pilar, Province of
Bataan, on the 19th day of April, 1908. The testator died on the 28th of September, 1909, a
year and five months following the date of the execution of the will. The will was propounded
by the executrix, Juliana Bagtas, widow of the decedent, and the opponents are a son and
several grandchildren by a former marriage, the latter being the children of a deceased
daughter.chanroblesvirtualawlibrary chanrobles virtual law library

The basis of the opposition to the probation of the will is that the same was not executed
according to the formalities and requirements of the law touching wills, and further that the
testator was not in the full of enjoyment and use of his mental faculties and was without the
mental capacity necessary to execute a valid will.chanroblesvirtualawlibrary chanrobles virtual
law library

The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to
the time of his death suffered from a paralysis of the left side of his body; that a few years prior
to his death his hearing became impaired and that he lost the power of speech. Owing to the
paralysis of certain muscles his head fell to one side, and saliva ran from his mouth. He retained
the use of his right hand, however, and was able to write fairly well. Through the medium of
signs he was able to indicate his wishes to his wife and to other members of his
family.chanroblesvirtualawlibrary chanrobles virtual law library

At the time of the execution of the will there were present the four testamentary witnesses,
Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Señor Marco, and one
Florentino Ramos. Anacleto Paguio and the attorney have since died, and consequently their
testimony was not available upon the trial of the case in the lower court. The other three
testamentary witnesses and the witness Florentino Ramos testified as to the manner in which
the will was executed. According to the uncontroverted testimony of these witnesses the will
was executed in the following manner: chanrobles virtual law library

Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the
disposition of his property, and these notes were in turn delivered to Señor Marco, who
transcribed them and put them in form. The witnesses testify that the pieces of paper upon
which the notes were written are delivered to attorney by the testator; that the attorney read
them to the testator asking if they were his testamentary dispositions; that the testator
assented each time with an affirmative movement of his head; that after the will as a whole
had been thus written by the attorney, it was read in a loud voice in the presence of the
testator and the witnesses; that Señor Marco gave the document to the testator; that the latter,
after looking over it, signed it in the presence of the four subscribing witnesses; and that they
in turn signed it in the presence of the testator and each other.chanroblesvirtualawlibrary
chanrobles virtual law library

These are the facts of record with reference to the execution of the will and we are in perfect
accord with the judgment of the lower court that the formalities of the Code of Civil Procedure
have been fully complied with.chanroblesvirtualawlibrary chanrobles virtual law library

This brings us now to a consideration of appellants' second assignment of error, viz, the
testator's alleged mental incapacity at the time of the execution of the will. Upon this point
considerable evidence was adduced at the trial. One of the attesting witnesses testified that at
the time of the execution of the will the testator was in his right mind, and that although he
was seriously ill, he indicated by movements of his head what his wishes were. Another of the
attesting witnesses stated that he was not able to say whether decedent had the full use of his
mental faculties or not, because he had been ill for some years, and that he (the witnesses)
was not a physician. The other subscribing witness, Pedro Paguio, testified in the lower court as
a witness for the opponents. He was unable to state whether or not the will was the wish of the
testator. The only reasons he gave for his statement were the infirmity and advanced age of
the testator and the fact that he was unable to speak. The witness stated that the testator
signed the will, and he verified his own signature as a subscribing
witness.chanroblesvirtualawlibrary chanrobles virtual law library

Florentino Ramos, although not an attesting witness, stated that he was present when the will
was executed and his testimony was cumulative in corroboration of the manner in which the
will was executed and as to the fact that the testator signed the will. This witness also stated
that he had frequently transacted matters of business for the decedent and had written letters
and made inventories of his property at his request, and that immediately before and after the
execution of the will he had performed offices of his character. He stated that the decedent was
able to communicate his thoughts by writing. The testimony of this witness clearly indicates the
presence of mental capacity on the part of the testator. Among other witnesses for the
opponents were two physician, Doctor Basa and Doctor Viado. Doctor Basa testified that he had
attended the testator some four or five years prior to his death and that the latter had suffered
from a cerebral congestion from which the paralysis resulted. The following question was
propounded to Doctor Basa:

Q. Referring to mental condition in which you found him the last time you attended him, do
you think he was in his right mind? chanrobles virtual law library

A. I can not say exactly whether he was in his right mind, but I noted some mental
disorder, because when I spoke to him he did not answer me.

Doctor Basa testified at more length, but the substance of his testimony is that the testator had
suffered a paralysis and that he had noticed some mental disorder. He does not say that the
testator was not in his right mind at the time of the execution of the will, nor does he give it at
his opinion that he was without the necessary mental capacity to make a valid will. He did not
state in what way this mental disorder had manifested itself other than that he had noticed that
the testator did not reply to him on one occasion when he visited
him.chanroblesvirtualawlibrary chanrobles virtual law library

Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to
a hypothetical question as to what be the mental condition of a person who was 79 years old
and who had suffered from a malady such as the testator was supposed to have had according
to the testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and
discussed at some length the symptoms and consequences of the decease from which the
testator had suffered; he read in support of his statements from a work by a German Physician,
Dr. Herman Eichost. In answer, however, to a direct question, he stated that he would be
unable to certify to the mental condition of a person who was suffering from such a
disease.chanroblesvirtualawlibrary chanrobles virtual law library

We do not think that the testimony of these two physicians in any way strengthens the
contention of the appellants. Their testimony only confirms the fact that the testator had been
for a number of years prior to his death afflicted with paralysis, in consequence of which his
physician and mental strength was greatly impaired. Neither of them attempted to state what
was the mental condition of the testator at the time he executed the will in question. There can
be no doubt that the testator's infirmities were of a very serious character, and it is quite
evident that his mind was not as active as it had been in the earlier years of his life. However,
we can not include from this that he wanting in the necessary mental capacity to dispose of his
property by will.chanroblesvirtualawlibrary chanrobles virtual law library

The courts have been called upon frequently to nullify wills executed under such circumstances,
but the weight of the authority is in support if the principle that it is only when those seeking to
overthrow the will have clearly established the charge of mental incapacity that the courts will
intervene to set aside a testamentary document of this character. In the case of Bugnao vs.
Ubag (14 Phil. Rep., 163), the question of testamentary capacity was discussed by this court.
The numerous citations there given from the decisions of the United States courts are especially
applicable to the case at bar and have our approval. In this jurisdiction the presumption of law
is in favor of the mental capacity of the testator and the burden is upon the contestants of the
will to prove the lack of testamentary capacity. (In the matter of the will of Cabigting, 14 Phil.
Rep., 463; in the matter of the will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil.
Rep., 689.) chanrobles virtual law library

The rule of law relating to the presumption of mental soundness is well established, and the
testator in the case at bar never having been adjudged insane by a court of competent
jurisdiction, this presumption continues, and it is therefore incumbent upon the opponents to
overcome this legal presumption by proper evidence. This we think they have failed to do.
There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard, few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal, are
universal in statement that the question of mental capacity is one of degree, and that there are
many gradations from the highest degree of mental soundness to the lowest conditions of
diseased mentality which are denominated as insanity and idiocy.chanroblesvirtualawlibrary
chanrobles virtual law library

The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should not be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing the question of testamentary
capacity, it is stated in volume 28, 70, of the American and English Encyclopedia of Law, that -

Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weaknesses,
disorders, or peculiarities and still be capable in law of executing a valid will. (See the numerous
cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and
quoted with approval in Campbell vs. Campbell (130 Ill., 466), as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in
the full possession of his reasoning faculties.

In note, 1 Jarman on Wills, 38, the rule is thus stated:

The question is not so much, that was the degree of memory possessed by the testator, as, had
he a disposing memory? Was he able to remember the property he was about to bequeath, the
manner of disturbing it, and the objects of his bounty? In a word, were his mind and memory
sufficiently sound to enable him to know and understand the business in which he was engaged
at the time when he executed his will. (See authorities there cited.)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case:
The testator died at the age of nearly 102 years. In his early years he was an intelligent and
well informed man. About seven years prior to his death he suffered a paralytic stroke and from
that time his mind and memory were mush enfeebled. He became very dull of hearing and in
consequence of the shrinking of his brain he was affected with senile cataract causing total
blindness. He became filthy and obscene in his habits, although formerly he was observant of
the properties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total, or extend to his immediate family or property. . . .

xxxxxxxxx
Dougal (the testator) had lived over one hundred years before he made the will, and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted
slowly, he was forgetful or recent events, especially of names, and repeated questions in
conversation; and sometimes, when aroused for sleep or slumber, would seem bewildered. It is
not singular that some of those who had known him when he was remarkable for vigor and
intelligence, are of the opinion that his reason was so far gone that he was incapable of making
a will, although they never heard him utter an irrational expression.

In the above case the will was sustained. In the case at bar we might draw the same contrast
as was pictured by the court in the case just quoted. The striking change in the physical and
mental vigor of the testator during the last years of his life may have led some of those who
knew him in his earlier days to entertain doubts as to his mental capacity to make a will, yet we
think that the statements of the witnesses to the execution of the will and statements of the
conduct of the testator at that time all indicate that he unquestionably had mental capacity and
that he exercised it on this occasion. At the time of the execution of the will it does not appear
that his conduct was irrational in any particular. He seems to have comprehended clearly what
the nature of the business was in which he was engaged. The evidence show that the writing
and execution of the will occupied a period several hours and that the testator was present
during all this time, taking an active part in all the proceedings. Again, the will in the case at bar
is perfectly reasonable and its dispositions are those of a rational
person.chanroblesvirtualawlibrary chanrobles virtual law library

For the reasons above stated, the order probating the will should be and the same is hereby
affirmed, with costs of this instance against the appellants.

G.R. No. 4445           September 18, 1909

CATALINA BUGNAO, proponent-appellee,
vs.
FRANCISCO UBAG, ET AL., contestants-appellants.

Rodriguez and Del Rosario for appellants.

Fernando Salas for appellee.

CARSON, J.:

This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to
probate a document purporting to be the last will and testament of Domingo Ubag, deceased. The
instrument was propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and
probate was contested by the appellants, who are brothers and sisters of the deceased, and who
would be entitled to share in the distribution of his estate, if probate were denied, as it appears that
the deceased left no heirs in the direct ascending or descending line.

Appellants contend that the evidence of record is not sufficient to establish the execution of the
alleged will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and
that at the time when it is alleged that the will was executed, Ubag was not of sound mind and
memory, and was physically and mentally incapable of making a will.

The instrument propounded for probate purports to be the last will and testament of Domingo Ubag,
signed by him in the presence of three subscribing and attesting witnesses, and appears upon its
face to have been duly executed in accordance with the provisions of the Code of Civil Procedure
touching the making of wills.

Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mariño, testified in support of the
will, the latter being the justice of the peace of the municipality wherein it was executed; and their
testimony was corroborated in all important details by the testimony of the proponent herself, who
was present when the will was made. It does not appear from the record why the third subscribing
witness was not called; but since counsel for the contestants makes no comment upon his absence,
we think it may safely be inferred that there was some good and sufficient reason therefore. In
passing, however, it may be well to observe that, when because of death, sickness, absence, or for
any other reason, it is not practicable to call to the witness stand all the subscribing witnesses to a
will offered for probate, the reason for the absence of any of these witnesses should be made to
appear of record, and this especially in cases such as the one at bar, wherein there is a contests.

The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that
the testator, at the time of its execution, was of sound mind and memory, and in their presence
attached his signature thereto as his last will and testament, and that in his presence and in the
presence of each other, they as well as the third subscribing witness. Despite the searching and
exhaustive cross-examination to which they were subjected, counsel for appellants could point to no
flaw in their testimony save an alleged contradiction as to a single incident which occurred at or
about the time when the will was executed a contradiction, however, which we think is more
apparent than real. One of the witnesses stated that the deceased sat up in bed and signed his
name to the will, and that after its execution food was given him by his wife; while the other
testified that he was assisted into a sitting position, and was given something to eat before he
signed his name. We think the evidence discloses that his wife aided the sick man to sit up in bed at
the time when he signed his name to the instrument, and that he was given nourishment while he
was in that position, but it is not quite clear whether this was immediately before or after, or both
before and after he attached his signature to the will. To say that the sick man sat up or raised
himself up in bed is not necessarily in conflict with the fact that he received assistance in doing so;
and it is not at all improbable or impossible that nourishment might have been given to him both
before and after signing the will, and that one witness might remember the former occasion and the
other witness might recall the latter, although neither witness could recall both. But, however this
may have been, we do not think that a slight lapse of memory on the part of one or the other
witness, as to the precise details of an unimportant incident, to which his attention may not have
been particularly directed, is sufficient to raise a doubt as to the veracity of these witnesses, or as to
the truth and accuracy of their recollection of the fact of the execution of the instrument. Of course,
a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or even a single contradiction as to a particular incident,
where the incident was of such a nature that the intention of any person who was present must
have been directed to it, and where the contradictory statements in regard to it are so clear and
explicit as to negative the possibility or probability of mistake, might well be sufficient to justify the
conclusion that the witnesses could not possibly have been present, together, at the time when it is
alleged the will was executed; but the apparent contradictions in the testimony of the witnesses in
the case at bar fall far short of raising a doubt a to their veracity, and on the other hand their
testimony as a whole gives such clear, explicit, and detailed account of all that occurred, and is so
convincing and altogether satisfactory that we have no doubt that the trial judge who heard them
testify properly accepted their testimony as worthy of entire confidence and belief.

The contestants put upon the stand four witnesses for the purpose of proving that at the time and
on the occasion when the subscribing witnesses testified that the will was executed, these witnesses
were not in the house with the testator, and that the alleged testator was at that time in such
physical and mental condition that it was impossible for him to have made a will. Two of these
witnesses, upon cross-examination, admitted that they were not in the house at or between the
hours of four and six in the afternoon of the day on which the will is alleged to have been made, this
being the time at which the witnesses in support of the will testified that it was executed. Of the
other witnesses, one is a contestant of the will, Macario Ubag, a brother of the testator, and the
other, Canuto Sinoy, his close relative. These witnesses swore that they were in the house of the
deceased, where he was lying ill, at or about the time when it is alleged that the will was executed,
and that at that time the alleged subscribing witnesses were not in the house, and the alleged
testator was so sick that he was unable to speak, to understand, or to make himself understood,
and that he was wholly incapacitated to make a will. But the testimony of Macario Ubag is in our
opinion wholly unworthy of credence. In addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs, and to
that end an utter disregard of the truth, and readiness to swear to any fact which he imagined
would aid in securing his object. An admittedly genuine and authentic signature of the deceased was
introduced in evidence for comparison with the signature attached to the will, but this witness in his
anxiety to deny the genuineness of the signature of his brother to the will, promptly and positively
swore that the admittedly genuine signature was not his brother's signature, and only corrected his
erroneous statement in response to a somewhat suggestive question by his attorney which evidently
gave him to understand that his former answer was likely to prejudice his own cause. On cross-
examination, he was forced to admit that because his brother and his brother's wife (in those favor
the will was made) were Aglipayanos, he and his other brothers and sisters had not visited them for
many months prior to the one particular occasion as to which testified; and he admitted further,
that, although he lived near at hand, at no time thereafter did he or any of the other members of his
family visit their dying brother, and that they did not even attend the funeral. If the testimony of
this witness could be accepted as true, it would be a remarkable coincidence indeed, that the
subscribing witnesses to the alleged will should have falsely pretended to have joined in its
execution on the very day, and at the precise hour, when this interested witness happened to pay
his only visit to his brother during his last illness, so that the testimony of this witness would furnish
conclusive evidence in support of the allegations of the contestants that the alleged will was not
executed at the time and place or in the manner and form alleged by the subscribing witnesses. We
do not think that the testimony of this witness nor any of the other witnesses for the contestants is
sufficient to raise even a doubt as to the truth of the testimony of the subscribing witnesses as to
the fact of the execution of the will, or as to the manner and from in which it was executed.

In the course of the proceedings, an admittedly genuine signature of the deceased was introduced
in evidence, and upon a comparison of this signature with the signature attached to the instrument
in question, we are wholly of the opinion of the trial judge, who held in this connection as follows:

No expert evidence has been adduced with regard to these two signatures, and the
presiding judge of this court does not claim to possess any special expert knowledge in the
matter of signatures; nevertheless, the court has compared these two signatures, and does
not find that any material differences exists between the same. It is true that the signature
which appears in the document offered for authentication discloses that at the time of
writing the subscriber was more deliberate in his movements, but two facts must be
acknowledge: First, that the testator was seriously ill, and the other fact, that for some
reason which is not stated the testator was unable to see, and was a person who was not in
the habit of signing his name every day.

These facts should sufficiently explain whatever difference may exist between the two
signatures, but the court finds that the principal strokes in the two signatures are identical.

That the testator was mentally capable of making the will is in our opinion fully established by the
testimony of the subscribing witnesses who swore positively that, at the time of its execution, he
was of sound mind and memory. It is true that their testimony discloses the fact that he was at that
time extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks
of asthma; that he was too sick to rise unaided from his bed; that he needed assistance even to rise
himself to a sitting position; and that during the paroxysms of asthma to which he was subject he
could not speak; but all this evidence of physical weakness in no wise establishes his mental
incapacity or a lack of testamentary capacity, and indeed the evidence of the subscribing witnesses
as to the aid furnished them by the testator in preparing the will, and his clear recollection of the
boundaries and physical description of the various parcels of land set out therein, taken together
with the fact that he was able to give to the person who wrote the will clear and explicit instructions
as to his desires touching the disposition of his property, is strong evidence of his testamentary
capacity.

Counsel for appellant suggests that the fact that the alleged will leaves all the property of the
testator to his widow, and wholly fails to make any provision for his brothers or sisters, indicates a
lack of testamentary capacity and undue influence; and because of the inherent improbability that a
man would make so unnatural and unreasonable a will, they contend that this fact indirectly
corroborates their contention that the deceased never did in fact execute the will. But when it is
considered that the deceased at the time of his death had no heirs in the ascending or descending
line; that a bitter family quarrel had long separated him from his brothers and sisters, who declined
to have any relations with the testator because he and his wife were adherents of the Aglipayano
Church; and that this quarrel was so bitter that none of his brothers or sisters, although some of
them lived in the vicinity, were present at the time of his death or attended his funeral; we think the
fact that the deceased desired to leave and did leave all of his property to his widow and made no
provision for his brothers and sisters, who themselves were grown men and women, by no means
tends to disclose either an unsound mind or the presence of undue influence on the part of his wife,
or in any wise corroborates contestants' allegation that the will never was executed.
It has been said that "the difficulty of stating standards or tests by which to determine the degree of
mental capacity of a particular person has been everywhere recognized, and grows out of the
inherent impossibility of measuring mental capacity, or its impairment by disease or other causes"
(Greene vs.  Greene, 145 III., 264, 276); and that "it is probable that no court has ever attempted to
lay down any definite rule in respect to the exact amount of mental capacity requisite for the making
of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196,
203).

Between the highest degree of soundness of mind and memory which unquestionably carries with it
full testamentary capacity, and that degree 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 the disease of body, or from age,
will not render a person incapable of making a will, a weak or feeble minded person may make a
valid will, provided he has understanding memory sufficient to enable him to know what he is about,
and how or to whom he is disposing of his property" (Lodge vs. Lodge, 2 Houst. (Del.), 418); that,
"To constitute a sound and disposing mind, it is not necessary that the mind should be unbroken or
unimpaired, unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has
not been understood that a testator must possess these qualities (of sound and disposing mind and
memory) in the highest degree. . . . Few indeed would be the wills confirmed, if this is correct. Pain,
sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a
greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be
such as deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680);
and, that "Sound mind does not mean a perfectly balanced mind. The question of soundness is one
of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been
held that "testamentary incapacity does not necessarily require that a person shall actually be insane
or of an unsound mind. Weakness of intellect, whether it arises from extreme old age from disease,
or great bodily infirmities or suffering, or from all these combined, may render the testator incapable
of making a valid will, providing such weakness really disqualifies her from knowing or appreciating
the nature, effects, or consequences of the act she is engaged in" (Manatt vs. Scott, 106 Iowa, 203;
68 Am. St. Rep., 293, 302).

But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of
testamentary capacity which will cover all possible cases which may present themselves, because, as
will be seen from what has already been said, the testator was, at the time of making the
instrument under consideration, endowed with all the elements of mental capacity set out in the
following definition of testamentary capacity which has been frequently announced in courts of last
resort in England and the United States; and while is some cases testamentary capacity has been
held to exist in the absence of proof of some of these elements, there can be no question that, in
the absence of proof of very exceptional circumstances, proof of the existence of all these elements
in sufficient to establish the existence of testamentary capacity.

Testamentary capacity is the capacity to comprehend the nature of the transaction which the
testator is engaged at the time, to recollect the property to be disposed of and the person
who would naturally be supposed to have claims upon the testator, and to comprehend the
manner in which the instrument will distribute his property among the objects of his bounty.

(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71,
second edition.)

In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of
the instrument propounded as the last will and testament of the deceased; that it was made in strict
conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased
was of sound mind and memory, and executed the instrument of his own free will and accord.

The order probating the will should be land is hereby affirmed, with the cost of this instance against
the appellants.

Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-24569             February 26, 1926

MANUEL TORRES, petitioner-appellant and
LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.

Araneta & Zaragoza for appellant.

Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.

MALCOLM, J.:

This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.

Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a
considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked
that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of
the deceased on the grounds: (1) That the testator lacked mental capacity because at the time
of senile dementia and was under guardianship; (2) that undue influence had been exercised by the
persons benefited in the document in conjunction with others who acted in their behalf; and (3) that
the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a
prolonged trial judgment was rendered denying the legalization of the will. In the decision of the
trial judge appeared, among others, these findings:

All this evidence taken together with the circumstances that before and at the time Tomas
Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition wherein he was declared
physically and mentally incapacitated to take care of himself and manage his estate shows in
a clear and conclusive manner that at the time of signing the supposed will of Tomas
Rodriguez did not possess such mental capacity as was necessary to be able him to dispose
of his property by the supposed will.

But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the
time of execution of the will, competent to make a will, the court is of the opinion that the
will cannot be probated for it appears from the declaration of the attesting witness Elias
Bonoan that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas
Rodriguez, she told him to sign said Exhibit A because it was a document relative to the
complaint against one Castito, which Exhibit 4, then pending in the justice of the peace
court, and for the further reason that said Tomas Rodriguez was then under guardianship,
due to his being mentally and physically incapacitated and therefore unable to manage his
property and take care of himself. It must also be taken into account that Tomas Rodriguez
was an old man 76 years of age, and was sick in the hospital when his signature to the
supposed will was obtained. All of this shows that the signature of Tomas Rodriguez
appearing in the will was obtained through fraudulent and deceitful representations of those
who were interested in it. (Record on Appeal, p. 23)

From the decision and judgment above-mentioned the proponents have appealed. Two errors are
specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas
Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below
erred in holding that the signatures of Tomas Rodriguez to the will were obtained through
fraudulent and deceitful representations, made by persons interested in the executions of said will.

The record is voluminous — close to two thousand typewritten pages, with a varied assortment of
exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages.
The usual oral argument has been had. The court must scale this mountains of evidence more or
less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle.

The topics suggested by the assignments of error — Testamentary Capacity and Undue Influence —
will be taken up separately and in order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and second to make findings of law
and the law by rendering judgment.

I. TESTAMENTARY CAPACITY
A. Facts. — For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His
breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which
occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez
designated Vicente F. Lopez as the administrator of his property (Exhibit 7).

On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a
guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed
by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while
Rodriguez was far from strong on account of his years, he was yet capable of looking after his
property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas
Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the
questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for
the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding
judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).

Inasmuch as counsel for the appellee make such of one incident which occurred in connection with
the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923.
We will let the witness tell in his own words what happened on the occasions in question:

I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished,
I again entered his room, and told him that I had an order of the court which I wanted to
read as I did read to him, but after reading the order he asked me what the order meant; 'I
read it to you so that you may appear before the court, understand,' then I read it again,
but he asked what the order said; in view of that fact I left the order and departed from the
house. (S. R., p. 642.)

To return to our narrative — possibly inspired by the latter portion of the order of Judge Diaz,
Tomas Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was
to remain sick in bed until his death. The physician in charge during this period was Dr. Elias
Domingo. In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the
following "Senility; Hernia inguinal; Decubitus" (Exhibit 8).

On the door of the patient's room was placed a placard reading — "No visitors, except father,
mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the
patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz
Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman,
and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her
husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in
penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez,
who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the purpose of
securing him to prepare the will. In accordance with this request, Judge Mina conferred with Tomas
Rodriguez in the hospital in December 16th and December 29th. He ascertained the wishes of
Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the hospital
on December 31st to have the will executed but was unable to do so on account of having to make
a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.

In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which
has not been challenged in any way:

ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?

MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting
and other unimportant things, he consulted me or presented the question as to whether or
not D. Tomas could make his will, having announced his desire to do so. I told him that it
seemed that we were not called upon to decide or give an opinion as to whether or not he
can make a will; it is a question to be submitted to the court, but as he had announced his
desire, it is our duty to comply with it. Then he requested me to do what was necessary to
comply with his wishes: I told him I was to see him; then we agreed that on the morning
next to the following evening that is on the 16th, I should go to the General Hospital and so
I did.

Q. Did you go to the hospital in the evening of the 16th? — A. Yes, sir.

Q. Did you meet D. Tomas? — A. Yes, sir.

Q. Did D. Tomas tell you his desire to make a will?

OCAMPO: Leading.

ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you
saw him there? — A. He told me that.

Q. Please tell us what conversation you had with D. Tomas Rodriguez? — A. The
conversation I had with him that evening — according to my best recollection — I cannot tell
the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, '
Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D.
Vicente Lopez why does he not come. He cannot come because he has many things to do,
and besides it is hard for him and makes him tired, so he told me to come.' Mina, your
tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in
Quiapo, a good district, it is gay a commercial place you must have some business there
because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must
be have because the profession alone does not give enough. Where is your office? I work in
the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have properties. I am an attorney but do not
depend upon my profession. I interrupted D. Tomas saying, since you want to make a will,
when and to whom do you want to leave your fortune? Then he said, To whom else? To my
cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to
your cousin and niece? All my properties, Won't you specify the property to be given to each
of them? What for? All my property. Don't you have any other relatives? Yes, sir I have.
Won't you give any to those relatives? What for? was his answer. Well, do you want to
specify said properties, to say what they are? and he again said, What for? they know them,
he is my attorney-in-fact as to all property. I also said, Well and as legacy won't you give
property to other persons? answers, I think, something, they will know it. After being asked,
Whom do you think, would you want to be your executor? After hesitating a little, This
Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He
answered, Roman Apostolic Catholic, and then he also asked me, and your? Also Roman
Apostolic Catholic, Where have you studied?' 'In the University of Santo Tomas.' 'It is
convenient to preserve the Catholic religion that our descendants have left us. And you,
what did you have anything more to say as to your testamentary dispositions? No, he
answered. Then I remind him, 'You know that Vicente Lopez has sent me to get these
dispositions of yours, and he said, Yes, do it.' I asked him, When do you want it done? Later
on, I will send for you. After this believing to have done my duty, I bade him good-bye.

Q. Did you have any other occasion to see him? — A. Yes.

Q. When? — A. On December 29, 1923, also in the evening.

Q. Why did you go to see him? — A. Because as I had not received any message either from
Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the few
cases I had in the provinces particularly in Tayabas, which compelled me to be absent from
Manila until January 1st at least, for I might be there for several days, so I went to the
General Hospital of my own accord — since I had not received any messages from them —
with a rough draft which I had prepared in accordance with what he had told me in our
conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of
your will in accordance with your former statements to me in order to submit it to you. Do
you want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order
 that he could understand it . After reading, Is it all right, that is the way,— few words — you
see it takes only a few minutes; now I can execute the will. We can do it takes only a few
minutes.' In view of that statement of his, I called his attention, ' But we don't have
witnesses, D. Tomas.' I looked out through the door to see if I could call some witnesses but
it was late then and it was thought better to do it on the 31st of December. Then we talked
about other things, and he again asked. Where were you born? I told him in Quiapo. Ah,
good district, and especially now that the fiesta of Quiapo is coming near,' and then I
interrupted him, Yes, the fiesta of the Holy Child and of Our Lady of Mount Carmel' because
we also talked about the fiesta of San Sebastian. I again reminded him that we could not do
it because the witnesses were not there and he explained, Good Christmas present, isn't it?'
I did not tell him anything and in view of that I did not deem it necessary to stay there any
longer.

Q. With whom did you make the arrangement to make the will on the evening of the 31st of
December — you said that it was agreed that the will be executed on the evening of
December 31st? — A. With Santiago Lopez and Don Tomas.

Q. Was the will executed on the 31st of December? — A. What happened is this: In view of
that agreement, I fixed up the draft which I had, dating it the 31st of December, putting
everything in order; we agreed that Santiago would meet me on 31st day between five and
six in the evening or a little before, but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not trouble about going to the General
Hospital; because it could not be carried out for the reason that certain requisites were
lacking. In view of this and bearing always in mind that on the following day I had to go to
the provinces, I told Santiago Lopez that I would leave the papers with him because I might
go to the provinces.

Q. What may be the meaning of those words good Christmas present? — A. They are given
a Christmas present when Christmas comes or on the occasion of Christmas.

Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of
the will which you delivered to Santiago Lopez on December 21, 31, 1923? — A. With the
exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244-
249.)

As the witness stated, the will which was prepared by him is identical with that signed by the
testator and the attesting witnesses with the single exception of the change of the date from
December 31, 1923, to January 3, 1924. Two copies besides the original of the will were made. The
will is brief and simple in terminology.

For purposes of record, we copy the will as here translated into English:

ONLY PAGE

In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age
and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my
will and testament in the Spanish language which I know, with the following clauses:

First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in
accordance with my religion, standing and circumstances.

Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my
only universal heirs of all my property.

Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.

In witness whereof I sign this typewritten will, consisting of one single page, in the presence
of the witness who sign below.

(Sgd.) TOMAS RODRIGUEZ

 (Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS

We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez
executed this will, consisting of one single typewritten page, having signed at the bottom of
the will in the presence of us who saw as witnesses the execution of this will, we signed at
the bottom thereof in the presence of the testator and of each other.

(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)

On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the
Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias
Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of
observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs.
Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the
background.

As to what actually happened, we have in the record two absolutely contradictory accounts. One
emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all
remaining persons who were there.

Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to
formal matters, such as the identification of the signatures to the will .On cross-examination, he
rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez
to sign the document it concerned a complaint against Castito and that nobody read the will to the
testator. Doctor Bonoan's testimony along this line is as follows:

QUESTIONS.

MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?

Araneta: I object to the question as being immaterial.

Court: Objection overruled.

Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the
hospital at 3 o'clock sharp in the afternoon of the 3d of January.

Q. Who is that Luz whom you have mentioned? — A. Luz Lopez, daughter of Vicente Lopez.

Q. What day, January 3, 1924? A. Yes, sir.

Q. When did Luz Lopez talk to you in connection with your going to the hospital? — A. On
the morning of the 3d she called me up by telephone.

Q. On the morning? — A. On the morning.

Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk
to you? A. Yes, sir.

Q. How many days approximately before was it? — A. I cannot tell the day, it was
approximately one week before, — on that occasion when I was called up by her about the
deceased Vicente Lopez.
Q. What did she tell you when you went to the house of Vicente Lopez one week
approximately before signing the will? - A. That Tomas Rodriguez would make a will.

Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General
Hospital.

Q. Was that document written in the hospital? — A. I have not seen it.

Q. When you went to the General Hospital on January 3, 1924, who were the persons you
met in the room where the patients was ? — A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.

Q. Were those the only persons? — A. Yes, sir.

Q. What time approximately did you go to the General Hospital on January 3d? — A. A
quarter to 3.

Q. After you, who came? — A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon
arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.

Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital
in what position did you find him?— A. He was lying down.

Q. Did you greet D. Tomas Rodriguez? A. I did.

Q. Did D. Tomas Rodriguez answer you? — A. Dna. Nena immediately answered in advance
and introduced me to him saying that I was the brother of his godson.

Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo,
De Asis and Legarda greet Tomas Rodriguez?

ARANETA: I object to the question as being improper cross-examination. It has not been the
subject of the direct examination.

COURT: Objection overruled.

ARANETA: Exception.

A. No, sir, they joined us.

Q. What was D. Tomas told when he signed the will.? — A. To sign it.

Q. Who told D. Tomas to sign the will? — A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? — A. She
told him to sign the document; the deceased Tomas Rodriguez before signing the document
asked what that was which he was to sign.

Q. What did anybody answer to that question of D. Tomas? — A. Luz Lopez told him to sign
it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz
Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint
against Castito.

Q. Then Tomas Rodriguez signed the will? — A. Yes, sir.

Q. Who had the will? Who was holding it? — A. Mr. Vicente Legarda had it his own hands.

Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? — A. Lying
down.
 Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the
will, did they read it to him? — A. Nobody read the will to him.

Q. Did not D. Tomas read the will? — A. I have not seen it.

Q. Were you present? — A. Yes, sir. ( S. R. p. 8)

As it would be quite impracticable to transcribe the testimony of all the others who attended the
making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell
what transpired. He testified in part:

ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?

LEGARDA: A. Santiago Lopez.

Q. Did he show you the same document? — A. First that is to say the first document he
presented to me was a rough draft, a tentative will, and it was dated December 31st, and I
called his attention to the fact that the date was not December 31, 1923, and that it was
necessary to change the date to January 3, 1924, and it was done.

Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? — A. Yes, sir.

Q. Do you any know where it was written? — A. In the General Hospital.

Q. Did any time elapse from your making the suggestion that the document which you
delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were
presented to you? — A. About nine or ten minutes approximately.

Q. The time to make it clean? — A. Yes, sir.

Q. Where were you during that time? — A. In the room of D. Tomas Rodriguez.

Q. Were you talking with him during that time. — A. Yes, sir.

Q. About what things were you talking with him? — A. He was asking me about my health,
that of my family how my family was my girl, whether we were living in Pasay, he asked me
about the steamer Ildefonso, he said that it was a pity that it had been lost because he
knew that my father-in-law was the owner of the steamer Ildefonso.

xxx     xxx     xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the
will signed by D. Tomas Rodriguez were written clean, will you please tell what happened?
— A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and
told him: Don Tomas, here is this will which is ready for your signature.

Q. What did D. Tomas do when you said that his will you were showing to him was ready?
— A. The first thing he asked was: the witnesses? Then I called the witnesses — Gentlemen,
please come forward, and they came forward, and I handed the documents to D. Tomas. D.
Tomas got up and then took his eyeglasses, put them on and as he saw that the electric
lamp at the center was not sufficiently clear, he said: 'There is no more light;' then
somebody came forward bringing an electric lamp.

Q. What did D. Tomas do when that electric lamp was put in place? — A. The eyeglasses
were adjusted again and then he began to read, and as he could not read much for a long
time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor
man was tired, I suggested that it be read to him and he stopped reading and I read the will
to him.
 Q. What happened after you had read it to him? — A. He said to me, 'Well, it is all right. It is
my wish and my will. Don't you have any pen?' I asked a pen of those who were there and
handed it to D. Tomas.

Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to
sign?' and Luz Lopez told him: 'It is in connection with the complaint against Castito?' — A.
It is not true, no, sir.

Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez?
— A. No, Sir, she said nothing.

Q. According to you, Tomas Rodriguez signed of his own accord? — A. Yes, sir.

Q. Did nobody tell him to sign? — A. Nobody.

Q. What happened after the signing of the will by Tomas Rodriguez? — A. I called the
witnesses and we signed in the presence of each other and of Tomas Rodriguez.

Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? — A.
Doctor Calderon asked D. Tomas Rodriguez some questions.

Q. Do you remember the questions and the conversation held between Doctor Calderon and
D. Tomas after the signing of the will? — A. I remember that afterwards Doctor Calderon
talked to him about business. He asked him how the business of making loans at 18 per
cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is
usury. (S. R., p. 38.)

In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the
Bureau of Public Works and professor of engineering and architecture in the University of Santo
Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to
her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon,
Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the
Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines,
testified:

Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?

Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for
his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda
offered to read the will, it was read to him and he heard that in that will Vicente Lopez and
Luz Lopez were appointed heirs; we also saw him sign that will, and he signed not only the
original but also the other copies of the will and we also saw how the witnesses signed the
will; we heard that D. Tomas asked for light at that moment; he heard that D. Tomas asked
for light at that moment; he was at that time in a perfect mental state. And we remained
there after the will was executed. I asked him, 'How do you feel, how are you? Well I am
well, ' he answered. ' How is the business? There is a crisis at there is one good business,
namely, that of making loans at the rate of 18 per cent, 'and he answered, 'That is usury.;
When a man answers in that way, ' That is usury it shows that he is all right.

Q. Were you present when Mr. Legarda handed the will to him? — A. Yes, sir.

Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito?
— A. No, sir, I have not heard anything of the kind.

Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what
that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in
connection with Castito.' Is that true? — A. I have not heard anything of the kind.

Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.
 Q. Was Luz Lopez there? — A. I don't remember having seen her; I am not sure; D.
Santiago Lopez and the three witnesses were there; I don't remember that Luz Lopez was
there.

Q. Had anybody told that to the deceased, would you have heard it? — A. Yes, sir.

Q. Do you remember whether he was given a pen or he himself asked for it? — A. I don't
know; it is a detail which I don't remember well; so that whether or not he was given a pen
or he himself asked for it, I do not remember.

Q. But did he sign without hesitation ? — A. With no hesitation.

Q. Did he sign without anybody having indicated to him where he was to sign? — A. Yes,
without anybody having indicated it to him.

Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? — A. He
asked for more lights, as I have said before.

Q. Do you remember that detail? — A. Yes, sir. They first lighted the lamps, but as the light
was not sufficient, he asked for more light.

Q. Do you remember very well that he asked for light? — A. Yes, sir. (S. R. p.993).

A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda,
corroborated as it is by other witnesses of the highest standing in the community. The only
explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have
arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de
Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to
Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall
the details connected with the reading.

There is one curious occurrence which transpired shortly after the making of the will which should
here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow:

Be it know by these present:

That I, Luz Lopez de Bueno in consideration of the services which at my instance were and
will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the
will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay
said doctor, by way of remuneratory donation, the sum of one thousand pesos (P1,000),
Philippine currency, as soon as said services shall have been fully rendered and I shall be in
possession of the inheritance which in said will is given to me.

In witness whereof, I sign this document which was freely and spontaneously executed by
me in Manila, this January 7, 1923.

(Sgd.) LUZ LOPEZ DE BUENO

(Exhibit 1)

There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de Bueno
relative to the execution of the above document. We shall not attempt to settle these differences as
in the final analysis it will not affect the decision one way or the other. The most reasonable
supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor Bonoan to her
side of the race by signing and giving to him Exhibit 1. But the event cannot easily be explained
away.

Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924.
Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight
over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in
charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and
Mental Diseases in the University of the Philippines, as attending physician; as associated with him
for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital
and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to
have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses.
The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship
proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the
University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases;
thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled
lawyers were available to aid and abet the medical experts. Out of such situations, do will contests
arise.

An examination of the certificates made by the two sets of physicians and of their testimony shows
that on most facts they concur. Their deductions from these facts disclose a substantial divergence
of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los
Angeles committee on the other.

Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before
the date when the will was executed. All of them, as we have noticed were, present at the signing of
the will to note the reactions of the testator. On the same day that the will was accomplished, the
three doctors signed the following certificate:

The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the
practice of their profession do hereby certify:

That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital,
floor No. 3, room No. 361 on three different occasion and on different days and have found
that said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility.

As to his mental state the result of the different tests to which this patient was submitted is
that his intellectual faculties are sound, except that his memory is weak, which is almost a
loss for recent facts, or events which have recently occurred, due to his physical condition
and old age.

They also certify that they were present at the time he signed his will on January 3, 1924, at
1:25 p.m. and have found his mental state in the same condition as was found by the
undersigned in their former examination and that in executing said will the testator and full
knowledge of the contents thereof.

In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) FLORENTINO HERRERA

Tuberias 1264
Quiapo

(Sgd.) Dr. FERNANDO CALDERON

General Hospital
Manila

(Sgd.) Dr. ELIAS DOMINGO

613 Remedios
Malate

(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality
of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:
Dr. CALDERON testifying after interruption:

A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and
that was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo
and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera
because had I found that Tomas Rodriguez was really insane, I should have ordered his
transfer to the San Lazaro Hospital or to other places, and would not have left him in the
General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to
have interviews with his, he begging a person whom I knew since several years ago; at the
end of the interviews I became convinced that there was nothing wrong with him; I had not
seen anything indicating that he was insane and for this reason I accepted the request of my
companions and joined them; we have been on five different occasions examining Tomas
Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental
state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas
Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the
22nd of January, 1924 — five consecutive days in which he have been together besides my
particular visits.

Q. Will you place state the result of the observation you made alone before those made by
the three of you jointly? — A. I asked Tomas Rodriguez some questions when I went alone
there, I asked him were he was living formerly and he well remembered that in Intramuros,
Calle Real; I asked him whether he remembered one Calderon who was living in the upper
floor of the house and then he told me yes; than I asked him about his tenant by the name
of Antonio Jimenez and he told me yes, — now I remember that he had two daughters,
Matilde and Paz. Then I told him that I had been living in the house of the gentlemen,
Antonio Jimenez already dead — in the upper story of the house belonged to Tomas
Rodriguez; I told him that Antonio Jimenez was his tenant of the upper story, that is that he
was living on the ground floor and Antonio Jimenez upstairs and he remembered all of this I
also began to talk of my brother, Felipe Calderon, who he said of course that he knew; he
remembered him because he was his companion and was a successful attorney. This was
when I had an interview with him. Then in order to observe better and to be sure of my
judgment or opinion about the mental state of Tomas Rodriguez, I saw him again and we
began to speak of something which I don't remember now. In fine, we talked of things of
interest and as I had finally accepted the request of Drs. Elias Domino and Florentino
Herrera to join then the first and second time that Herrera, Domingo and myself went there,
no stenographic notes were taken of what happened there.

Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to
the patient? — A. Yes, sir.

Q. From the result f the conversation you had with Tomas Rodriguez on those two visits
what is your opinion as to his mental capacity? — A. That he was sick; that he was weak,
but I have found absolutely no incoherence in his ideas; he answered my questions well and
as I was observing him there were times when he did not remember things of the present —
because this must be admitted — but on the other hand he had a wonderful memory of past
events; in talking with him, you would not notice in the conversation any alteration in his
mind nor that man had lost the reasoning power or logic.

Q. Did you notice any loss of memory, or that his memory was weakening about things of
the past? — A. About things of the past, I mean that you talk to him now about specific
matters, and after about five or ten minutes he no longer remembers what had been talked
of.

xxx     xxx     xxx

Q. Do you remember the conversation you had with him for the first time when the three of
you paid a visit to the patient? — A. I don't remember the details, but I do remember the
questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I
am thinking to make a will. But why don't you decide? There is no hurry there is time to
make a will, 'he said. Then in case you decide to make a will, to whom are you going to
leave your property? Don't you have any relatives? I have a relative, Vicente Lopez, my first
 cousin, and Margarita Lopez my first cousin they are brothers.' In that case, to whom, do
you want to leave your property? Why, I don't have much, very little, but I am decided to
leave it to my cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give
anything to Margarita Lopez? No because her husband is very bad, 'to use his exact
language is very bad.'

Q. Did you talk with him on that occasion about his estate? — A. Yes, sir, he told me that he
had three estates, — one on Calle Magallanes, another on Calle Cabildo and the third on
Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.

xxx     xxx     xxx

Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that
occasion, what is your opinion as to his mental capacity? — A. The following: That the
memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with
regard to matters or facts of the past; that his ideas were incoherent; that the thought with
logic, argued even with power and generally in some of the interviews I have arrived at the
conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody
should make him any suggestion because he answered in such a way that if you permit me
now to show you my stenographic notes, they will prove to you conclusively that he had an
initiative of his own and had no need of anybody making him any question. (S. R. p. 72.)

Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time
that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed
sufficient mentality to make a will. Among other things, Doctor Domingo testified:

ARANETA: Q. Have you known D. Tomas Rodriguez?

Dr. DOMINGO: A. Yes, sir.

Q. Did you attend D. Tomas Rodriguez as physician? — A. Yes, sir.

Q. When did you begin to attend him as physician? — A. On November 28, until his death.

Q. On November 28 or October 28, 1923, do you remember? — A. I had been attending him
as physician from November 28th although it true that I had opportunities to see and
examine him during the months of October and November.

Q. What was the object of your visits or attendance during the months of October and
November? — A. It was for the purpose of observing his mental state.

Q. Did you really examine his mental condition or capacity during the months of October and
November? — A. Yes, sir.

Q. How many times did you visit him? — A. I don't remember exactly but I visited him about
five or six times.

xxx     xxx     xxx

Q. Please tell us the result of your examination during those months of October and
November? — A. I examined him physically and mentally; I am not going to tell here the
physically result but the result of the mental examination, and that is: General Conduct: In
most of the times that I have seen him I found him lying on his bed, smoking a cigarette
and asked for a bottle of lemonade from time to time; I also observed that he was very
careful when throwing the ash of the cigarette, seeing to it that it did not fall on the
blankets; he also was careful not to throw the stub of the cigarette in any place to avoid fire;
I made more observations as to his general conduct and I found that sometimes Don Tomas
could move within the place although with certain difficulty. On two occasions I found him
seated, once seated at the table, seated in the chair, and other on a rocking chair. I also
examined his manner of talking and to all questions that I put to him he answered with a
 coherence and in a relevant manner, although sometimes he showed eagerness and certain
delay. I based these points of my declaration on the questions which are usually asked when
making a mental examination for instance I asked him, What is your name, 'and he correctly
answered Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked
him his profession and he answered that formerly he was an attorney but that at the time I
was making the examination he was not practising the profession; I asked him with what he
supported himself and he said that he lived upon his income, he said verbatim, 'I live on my
income.' I also asked him what the amount of him income was and he answered that it was
about P900; I asked him what the source of this income was and he said that it came from
his property.

Q. Did you ask him about his property? — A. No, at that time.

Q. Proceed. — A. I also observed his emotional status and effectivity. I found it rather
superficial, and he oftentimes got angry due to his physical disease; I asked him if he had
any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez,
Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily
remembered past events and when he described them he did it with such pleasure the he
used to smile afterwards — if it was a fact upon which one must smile, His memory of
recent facts was very much lessened. I say this because on various occasions and not having
known me when he had a better memory, after I had seen him thrice he remembered my
name and he recognized me. Insight and judgment. I arrived at the conclusion that he had
fair knowledge of himself because he knew that he was sick and could not be moving with
ease, but he believed that he could perform with sufficient ease mental acts; his judgment
was also all right because I asked him this question: 'Supposing that you could find a bill of
P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take
the bill and give it to the manager in order that the latter may look for the owner if possible.
His reasoning. I found that he showed a moderated retardation in the flow of his thought,
especially with regard to recent events, but was quite all right as to past events, His
capacity, He believed that he was capable of thinking properly although what did not permit
him to do so was his physical decrepit condition. The conclusion is that his memory is lost
for recent events tho not totally and diminution of his intellectual vigor. This is in few words
the result of my examination.

Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke.
Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the
patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case
and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze
and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians
conducted a joint examination result, on March 15, 1924, they prepared and signed the following:

MEDICAL CERTIFICATE

In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or
being confined in the Philippine General Hospital.

We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do
hereby certify as follows:

1. That we are physicians, duly registered under the Medical Act, and are in the actual
practice of the medical profession in the Philippines.

2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General
Hospital, we three have with care the diligence jointly and personally examined the person
of said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and
partly jointly observed and examined said patient on various occasions; Dr. Sixto de los
Angeles, at the patient's home, 246 Magallanes St., Manila, on November 6th and 7th ,
1923; Dr. Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the
Philippine General Hospital no January 17th, 20th, and 24, 1924; and as a result of the
medical examinations and the history of the case we found and hereby certify to the
following conclusions:
(a) That he was of unsound mind suffering from senile dementia, or of mental impairment
exceeding to a pathological extent the unusual conditions and changes found to occur in the
involutional period of life.

(b) That he was under the influence of the above condition continuously, at least from
November, 1923, till the date of our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have continued without improvement, as
these cases of insanity are due to organic pathological changes of the brain. This form of
mental disease is progressive in its pathological tendency, going on to progressive atropy
and degeneration of the brain, the mental symptoms, of course, running parallel with such
pathological basis.

(c) That on account of such disease and conditions his mind and memory were so greatly
impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and
consequences of the business he was engaged in; to understand and comprehend the
extent and condition of his properties; to collect and to hold in his mind the particulars and
details of his business transactions and his relations to the persons who were or might have
been the objects of his bounty; and to free himself from the influences of importunities,
threats and ingenuities, so that with a relatively less resistance, he might had been induced
to do what others would not have done.

3. We have diagnosed this case as senile demential of the simple type, approaching the
deteriorated stage upon the following detailed mental examination:

(a) Disorder of memory. — There was almost an absolute loss of memory of recent events,
to the extent that things and occurrences seen or observed only a few minutes previously
were completely forgotten. Faces and names of person introduced to him were not
remembered after a short moment even without leaving his bedside . He showed no
comprehension of the elemental routine required in the management of his properties, i.e.:
who were the lessees of his houses, what rents they were paying, who was the
administrator of his properties, in what banks he deposited his money or the amount of
money deposited in such banks. Regarding his personal relation, he forgot that Mr. Antonio
Ventura is the husband of his nearest woman cousin; the Mrs. Margarita Lopez was married,
saying that the latter was single or spinster, in spite of the fact that formerly, during the past
twenty-five years, he was aware of their marriage life, He did not know the names of the
sons and daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name
Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the
only living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him
in the hospital, though the latter died on January 7th, 1924. He did not recognized and
remember the name and face of Doctor Domingo, his own physician. However, the memory
for remote events was generally good, which is a characteristic symptom of senile dementia.

(b) Disorientation of time, place and persons. — He could not name the date when asked
(day or month); could not name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.

(c) Disorders of perception. — He was almost completely indifferent to what was going on

about him. He also failed to recognize the true value of objects shown him, that is he failed
to recognized the 'Saturday Evening Post' nor would he deny that it was a will when
presented as such. He also failed to show normal intellectual perception. Making no effort to
correlate facts or to understand matters discussed in their proper light.

(d) Emotional deterioration. — The patient was not known during his time of physical
incapacity to express in any way or lament the fact that he was unable to enjoy the
happiness that was due him with his wealth. As a matter of fact, he showed complete
indifference. He showed loss of emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food did not arrive immediately of when
his cigar was not lit soon, he would becomes abusive in his language and show marked
emotional outburst. If the servants did not immediately answer his call, he would break
down and cry as a child.
(e) Symptoms of decreased intellectual capacity. — There was a laxity of the internal
connection of ideas. The patient has shown no insight regarding his own condition. He did
not appreciate the attitude of the parties concerned in his case; he would on several
occasion become suspicious and fail to comprehend the purpose of our examination. He was
inconsistent in his ideas and failed to grasp the meaning of his own statements. When
questioned whether he would make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was
informed, however, that he had made a will on January 31, 1924, he denied the latter
statement, and failed to explain the former. Although for a long time confined to bed and
seriously ill for a long period, he expressed himself as sound physically and mentally, and in
the false belief that he was fully able to administer his business personally.

His impairment of the intellectual field was further shown by his inability, despite his
knowledge of world affairs, to appreciate the relative value of the statement made by Doctor
Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you
so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was
as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a
man after long experience in business life, who had handled real estate property, well versed
in the transaction of cheques, certainly shows a breaking down of the above field. No proper
question were asked why the cheque was given by the King, who the King was, why he was
selected by the King of Africa, or if there is a King of Africa at present. He further shows
doubt in his mental capability by the following questions and answers:

"MARCAIDA: P. ¿Tiene usted actualmente algún asunto en los tribunales de justicia

de Manila? -- R. No recuerdo en este momento.

"P. De tener usted algún asunto propio en los tribunales de justicia de Manila, ¿a qué
abogado confiaría usted la defensa del mismo?--R. Al Sr. Marcaida, como conocido
antiguo.

"P. ¿Ha hablado usted y conferenciado alguna vez o varias veces en estos días, o sea
desde el 25 de octubre de 1923 hasta hoy, con algún abogado para que le
defendiera algún asunto ante el Juzgado de Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar, nombraría al Sr. Marcaida. (P. 5, deposition,
Nov. 19, 1923.)

"ARANETA: P. ¿No recuerda usted que usted me ha encomendado como abogado

para que me oponga a que le declaren a usted loco o incapacitado?--R. Sí, señor,
quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.)

"Dr. DOMINGO: P. ¿Don Tomás, me conoce usted? ¿Se acuerda usted que soy el
Doctor Domingo?--R. Sí. (P. 7, sten. N., Jan. 28, 1924.)

"P. ¿Quién soy, Don Tomás, usted me conoce?--R. No sé. (P. 6, sten. N., Feb. 10,
1924.)

"Dr. ÁNGELES: P. ¿Me conoce usted, D. Tomás?--R. Le conozco de vista. (P. 6, sten.
N., Jan. 28, 1924.)

"P. Nos vamos a despedir ya, Don Tomás, de usted. Yo soy el Doctor Ángeles, ¿me
conoce usted?--R. De nombre.

"P. Este es el Doctor Burke, ¿le conoce usted?--R. De nombre.

"P. Este es el Doctor Domingo, ¿le conoce usted?--R. De vista.

"P. Este es el Doctor Burke, ¿recuerda usted su nombre?--R. No. (P. 10, sten. N.,
Jan. 28, 1924.)

"P.¿Usted conoce a este Doctor? (Señalando al Doctor Burke).--R. De vista; su

nombre ya lo he olvidado, ya no me acuerdo.
 "P.¿Usted nos ve a los tres? (Doctores Ángeles, Burke y Tietze).--R. Ya lo creo.

"Dr. BURKE: P. ¿Qué profesión tenemos? (Señalando a los Sres. Ángeles, Burke y
Tietze).--R. YO creo que son doctores.

"P. ¿Y lso dos? (Señalando a los Doctores Ángeles y Tietze).--R. No. sé.

"P. ¿Y este señor? (Señalando al Doctor Ángeles).--R. No me acuerdo en este

momento. (P. 4. And 5, sten. N., Feb. 10, 1924.)

(f) Other facts bearing upon the history of the case obtained by investigation of Doctor
Angeles:

I. Family History.  — His parents were noted to be of nervous temper and irritable.

II. Personal history. — He was a lawyer, but did not pursue his practice, devoting the
greater part of his life to collecting antiquities, He was generally regarded by his neighbors
as miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no
attempt to clean the filth of dirt that was around him. He was neglectful in personal habits.
On April, 1921, he suffered an injury to his forehead, from which he became temporarily
unconscious, and was confined in the Philippine General Hospital for treatment. He
frequently complained of attacks of dizziness and headache, following this injury; suffered
form a large hernia; and about two years ago, he was fined for failure in filing his income
tax, from which incident, we have reason to believe, the onset of his mental condition took
place. This incident itself can most probably be considered as a failure of memory. His
condition became progressively worse up to his death.

4. The undersigned have stated all the above facts contained in this certificate to the best of
our knowledge and belief.

Manila, P.I., March 15, 1924.

(Sgd.) SIXTO DE LOS ANGELES

W.B. BURKE, M.D.
SAMUEL TIETZE

(Exhibit 33 in relation with Exhibits 28 and 29.)

Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the
treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B,
and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no
reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the
observation made by the nurses, the nurse Apolonio Floreza testified.

Direct questions of Attorney OCAMPO:

Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the
body, and uttered some incoherent words of the same topics whenever is awakened.' How
could you observe that he had pains all over the body?

APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the
body of the patient he complained of some pain.

Q. On what part of the body did you touch him? — A. On all the parts of his body.

xxx     xxx     xxx

Q. How did you touch him, strongly or not? — A. Slightly.

Q. When you touched him slightly, what did he do? — A. He said that it was aching.
 Q. What words did he say when, according to your note, he uttered incoherent words
whenever he awakes? — A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos,
where is my key?'

Q. Did you hear him talk of Maria? — A. Only the word Maria.

Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50
centavos,' and where is my key? — A. For two or three minutes.

Q. Can you tell the court whether on those occasions when he said the name of Maria he
said other words and was talking with somebody? — A. He was talking to himself.

Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924.

Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the
body,' and later on talked too much whenever patient is awakened.' How did you happen to
know the pain which you have noted here? A. The pains all over the body, I have observed
them when giving him baths.

Q. Besides saying that it ached when you touched the body, do you know whether he did
any extraordinary thing? A. You mean to say acts?

Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to
say — Maria, the key, 50 centavos.

Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924?
— A. He used to say Maria where is Maria?

Q. On that date January 2, 1924, did you answer him when he said Maria? — A. No sir.

Q. In this observation of yours appearing on page 8-C you say among other things with pain
all over the body and shouted whenever he is given injection.' Did you really observe this in
the patient? — A. Yes, sir.

Q. How did he shout?

ARANETA: Objection as being immaterial.

COURT: Overruled.

ARANETA: Exception.

A. In a loud voice.

Q. Besides shouting do you remember whether he said anything? — A . He repeated the

same words I have said before — Maria the 50 centavos the key.

Q. When did this observation occur which appear on page 8-C? — A. On January 3, 1924.
(S. R. p. 5595.)

On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3,
1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.

As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and
Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke,
further declare that his memory however for remote events was generally good. He was given to
irrational exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are "sound, except that his memory is weak," and that in executing the will the testator had
full understanding of the act he was performing and full knowledge of the contents thereof, Doctors
De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they
diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.
Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical
witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case
comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make
a will, or had he passed so far along in senile dementia as to require the court to find him of
unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the
case.

B. Law. — The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the
testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing
mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally
incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary
capacity is the capacity to comprehend the nature of the transaction in which the testator is
engaged at the time, to recollect the property to be disposed of and the persons who would
naturally be supposed to have claims upon the testator, and to comprehend the manner in which
the instrument will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag
[1909], 14 Phil., 163, followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of
the testator is determined as of the date of the execution of his will (Civil Code, art. 666).

Various tests of testamentary capacity have been announced by the courts only later to be rejected
as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of
mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient
singly or jointly to show testamentary incapacity. Each case rests on its own facts and must be
decided by its own facts.

There is one particular test relative to the capacity to make a will which is of some practical utility.
This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it
natural or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will
was the offspring of an unsound mind.

On the issue of testamentary capacity, the evidence should be permitted to take a wide range in
order that all facts may be brought out which will assist in determining the question. 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. The evidence of those present at the execution of the
will and of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433,
484; Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)

The presumption is that every adult is sane. It is only when those seeking to overthrow the will have
clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)

Counsel for the appellee make capital of the testator being under guardianship at the time he made
his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of the person. To this statement
we cannot write down our conformity. The provisions of the cited section were taken from
California, and there the Supreme court has never held what is now urged upon us by the appellee.
The rule announced that in some states, by force of statute, the finding of insanity is conclusive as
to the existence of insanity during the continuance of adjudication, is found to rest on local statutes,
of which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal.,
190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is
that it raises a presumption of incapacity to make a will but does not invaluable the testament if
competency can be shown. The burden of providing sanity in such case is cast upon the proponents.

It is here claimed that the unsoundness of mind of the testator was the result of senile dementia.
This is the form of mental decay of the aged upon which will are most often contested. A Newton,
Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient
lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made
a will, without any question it would have invited litigation and doubt.

Senile dementia usually called childishness has various forms and stages. To constitute
complete senile dementia there must be such failure of the mind as to deprive the testator of
intelligent action,. In the first stages of the diseases, a person may possess reason and have will
power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et
seq.; Schouler on Wills, vol. I, pp. 145 et seq.)

It is a rather remarkable coincidence that of all the leading cases which have gone forth from this
court, relating to the testator having a sound and disposing mind, and which have been brought to
our notice by counsel, every one of them has allowed the will, even when it was necessary to
reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to
protect the wishes of the deceased whenever it be legally possible. These decisions also show great
tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez
vs. Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10
Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs.
Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent,
J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923],
44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because
of their peculiar applicability, we propose to make particular mention of four of the earlier cases of
this court.

In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona
Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the
testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days
afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders,"
as a result of her senile debility." The chief Justice reached the conclusion that neither from the
facts elicited by the interrogatories nor the documents presented "can the conclusion be reached
that the testatrix was deprived of her mental faculties." The will was held valid and efficacious.

In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that
Dominga Butalid at the date of the execution of the document was not in the date of the execution
of the document was not in the free use of her intellectual powers, she being over 90 years of age,
lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what
she was doing when she executed the will while the document was claimed to have been executed
under the influence and by the direction of one of the heirs designated in the will. Yet after an
examination of the evidence in the will. Yet after an examination of the evidence in the will. The
Chief Justice rendered judgment reversing the judgment appealed from and declaring the will
presented for legalization to be valid and sufficient.

In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing
witnesses who swore positively that at the time of the execution of the will the testator was of
sound mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court,
laid down the following legal principles:

Between the highest degree of soundness of mind and memory which unquestionably carries
with it full testamentary known as insanity or idiocy there are numberless degrees of mental
capacity or incapacity and while on one hand it had been held that mere weakness of mind
or partial imbecility from disease of body, or from age, will to render a person incapable of
making a will a weak or feeble minded person may make a valid will provided he has
understanding and memory sufficient to enable him to know what he is about and how or to
whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To
constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan
vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few
indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from
age or infirmity, would according to its violence or duration in a greater or less degree, break
in upon, weaken, or derange the mind, but the derangement must be such as deprives him
of the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound
 mind does not mean a perfectly balanced mind. The question of soundness is one of degree'
(Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been
held that testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old
age, from disease, or great bodily infirmities of suffering, or from all these combined, may
render the testator in capable of making a valid will, providing such weakness really
disqualifies for from knowing or appreciating the nature, effects, or consequences of the act
she is engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).

In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or
fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that
a few years prior to his death his hearing became impaired and that he had lost the power of
speech. However, he retained the use of his hand and could write fairly well. Through the medium
of signs, he was able to indicate his wishes to his family. The will was attacked n the ground that
the testator lacked mental capacity at the time of its execution. The will was nevertheless admitted
to probate, Mr. Justice Trent, speaking for the court, announcement the following pertinent legal
doctrines:

* * * There are many cases and authorities which we might cite to show that the courts
have repeatedly held that mere weakness of mind and body, induced by age and disease do
not render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal are
universal in the statement that the question of mental capacity is one of degree and that
there are many graduations from the highest degree of mental soundness to the lowest
conditions of diseased mentality which are denominated as insanity and idiocy.

The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing the question of testamentary
capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of
Law that —

'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weakness,
disorders or peculiarities and still be capable in law of executing a valid will.' (See the
numerous cases there cited in support of this statement.)

The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and
quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows:

To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken unimpaired or unshattered by disease or otherwise or that the testator should be
in the full possession of his reasoning faculties.

In note, 1 Jarnan on Wills, 38, the rule is thus stated:

The question is not so much, what was the degree of memory possessed by the testator as
had, he a disposing memory? Was he able to remember the property he was about to
bequeth the manner of distributing it and the object of his bounty? In a word, were his mind
and memory sufficiently sound to enable him to know and understand the business in which
he was engaged at the time when he executed his will.' (See authorities there cited)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the
case: The testator died at the age of nearly 102 years. In his early years he was an
intelligent and well informed man. About seven years prior to his death he suffered a
paralytic stroke and from that time his mind and memory were much enfeebled. He became
very dull of hearing and in consequence of the shrinking of his brain he was affected with
senile cataract causing total blindness. He became filthy and obscene in his habits, although
 formerly he was observant of the proprieties of life. The court, in commenting upon the
case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity
to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to
create the incapacity, unless it be total or extend to his immediate family to property. . . .

xxx     xxx     xxx

Dougal (the testator) had lived over one hundred years before he made the will and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful of recent events, especially of names and repeated questions
in conversation; and sometimes, when aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.

In the above case the will was sustained. In the case at bar we might draw the same
contract as was pictured by the court in the case just quoted. . . .

The particular difference between all of the Philippine case which are cited and the case at bar are
that in none of the Philippine cases was there any declaration of incomplicated and in none of them
were the facts quite as complicated as they are here. A case in point where the will was contested,
because the testator was not of sound and disposing mind and memory and because at the time of
the making of the will he was acting under the undue influence of his brothers and where he had a
guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore,
delivering the opinion of the court, in part said:

It is contended by contestant's counsel that on the day said pretended will purports to have
been executed, Lowell was declared incompetent by a court which had jurisdiction of the
person and subject-matter and that the decree therein appointing a guardian of his person
and estate raises the distable presumption that he did not possess sufficient testamentary
capacity at the time to overcome which required evidence so strong as to leave no
reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the
proponent being insufficient for that purpose the court erred in admitting it to probate.

The appointment of a guardian of a person alleged to be non compos mentis, by a court

having jurisdiction must necessarily create a presumption of the mental infirmity of the
ward; but such decree does not conclusively show that the testamentary capacity of the
person under guardianship is entirely destroyed and the presumption thus created may be
overcome by evidence proving that such person at the time he executed a will was in fact of
sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt,
18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).

The testimony shows that the testator retained a vivid recollection of the contents of the
books he had read and studied when he was young but that he could not readily recall to his
mind the ordinary incidents of his later life. The depth and intensity of mental impression
always depend upon and are measured by the degree of attention given to the perception of
truth, which demands reflection; and hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it manifest a want of power on
concentration of the mind. The aged live in the past and the impression retained in their
minds are those that were made in their younger days, because at that period of their lives
they were able to exercise will power by giving attention. While the inability of a person of
advanced years to remember recent events distinctly undoubtedly indicates a decay of the
human faculties, it does not conclusively establish senile dementia, which is something more
than a mere loss of mental power, resulting from old age and is not only a feeble condition
of the mind but a derangement thereof. . . . The rule is settled in this state that if a testator
at the time he executes his will understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of it among those entitled to his
 bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.

xxx     xxx     xxx

It is contented by contestant's counsel that if Lowell at the time he executed the pretended
will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill
health, debility of body and infirmity of will power, Andrew and Joseph having knowledge
thereof took advantage of his physical and mental condition and unduly influenced him to
device and bequeth his property in the manner indicated, attempting thereby to deprive the
contestant of all interest therein except such as was given her by statute. . . . Assuming that
he was easily persuaded and that his brothers and the persons employed by them to care
for him took advantage of his enfeebled condition and prejudiced his mind against the
contestant did such undue influence render the will therefore executed void? . . . When a
will has been properly executed, it is the duty of the courts to uphold it, if the testator
possessed a sound and disposing mind and memory and was free from restraint and not
acting under undue influence notwithstanding sympathy for persons legally entitled to the
testator's bounty and a sense of innate justice might suggest a different testamentary
disposition.

Believing, as we do, that the findings of the circuit court are supported by the weight of the
testimony its decree is affirmed.

Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step
further the question suggested at the end of the presentation of the facts on the same subject a
resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess
sufficient mentality to make a will which would meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of proof and shown him to be of
sound mind on that date?

II. UNDUE INFLUENCE

A. Facts. — The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. it is now for us to say if the facts justify
this finding.

Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was
Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution
of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo
as to who could be admitted to see the patient.

The trial judge entertained the opinion that there existed "a preconceived plan on the part of the
persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge
Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean
themselves and so fully their characters and reputation as to participate in a scheme having for its
purpose to delude and to betray an old man in his age, rather named was acting according to the
best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the
attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity
toward them, it seems fairly evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.

B. LAW. — One of the grounds for disallowing a will is that it was procured by undue and improper
pressure and influence on the art of the beneficiary or some other person for his benefit (Code of
Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of
wills and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled
the testator to do that which is against the will from fear the desire of peace or from other feeling
which is unable to resist.

The theory of undue influence is totally rejected as not proved.

III. JUDGMENT

To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did
Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet
the legal test regarding testamentary capacity and have the proponents of the will carried
successfully the burden of proof and shown him to be of sound mind on that date?

Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which
the will was executed and to the testator's mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated, would require the court to
disallow the will. The attending physician and three other eminent members of the medical
fraternity, who were present at the execution of the will, expressed opinions entirely favorable to
the capacity of the testator. As against this we have the professional speculations of three other
equally eminent members of the medical profession when the will was executed. The advantage on
those facts is all with those who offer the will for probate.

The will was short. It could easily be understood by a person in physical distress. It was reasonable,
that is, it was reasonable if we take into account the evident prejustice of the testator against the
husband of Margarita Lopez.

With special reference of the definition of testamentary capacity, we may say this: On January 3,
1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was
engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to
contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper
places at the bottom and on the left margin. At that time the testator recollected the property to be
disposed of and the persons who would naturally be supposed to have claims upon him While for
some months prior to the making of the will he had not manage his property he seem to have
retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed
him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to
entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in
which the instrument distributed the property naming the objects of his bounty. His conversations
with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he
specified.

On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically
decrepit, may have been weak in intellect, may have suffered a loss of memory, may have had a
guardian and may have a been extremely eccentric, but he still possessed the spark of reason and
of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." That in effect is the definite
opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing
the evidence for the oppositors, and after giving to the case the serious consideration which it
deserves.

The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to
probate without special pronouncement as to costs in this instance.

G.R. No. L-39033             November 13, 1933

In re  will of the late Matea Abella. MONS. SANTIAGO SANCHO, applicant-appellee,

vs.
MARCIANA ABELLA, opponent-appellant.

Sotto and Astilla for appellant.

B. Quitoriano for appellee.
VILLA-REAL, J.:

This is an appeal taken by the opponent Marciana Abella from the judgment rendered by the Court
of First Instance of Ilocos Sur, the dispositive part of which reads as follows:

Wherefore, this court is of the opinion, and so holds, that the opposition filed by Marciana
Abella is without merit and, therefore, it is hereby denied. The application filed herein is
granted and the document, Exhibit A, is hereby ordered and decreed probated as the last
will and testament of the late Matea Abella. So ordered.

In support of her appeal, the appellant assigns the following alleged errors in the decision of the
court a quo, to wit:

1. The lower court erred in holding that Matea Abella was in the full enjoyment of her
mental faculties and executed the document, Exhibit A, as a true expression of her last will.

2. The lower court erred in holding that the requirements of the law have been complied
with in the execution of the will, Exhibit A.

3. The lower court erred in holding that when the late Matea Abella affixed her alleged
signatures to the will, Exhibit A, she did not act under the illegal and undue influence of
certain legatees.

4. The lower court erred in decreeing the probate of the will, Exhibit A.

The following facts have been proven by a preponderance of evidence presented during the trial, to
wit:

The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos Sur, had been informed that
Dr. Antonio Querol of San Fernando La Union, was a good physician. On April 13, 1932, she left her
home situated in the said municipality of Sinait, accompanied by her niece, Filomena Inay, to consult
the said physician in his clinic in San Fernando, La Union, stopping at the convent of the parish
church of the said municipality, in charge of Father Cordero with whom she was acquainted he
having been the parish priest of Sinait. During her stay in the said convent, she went to Dr. Antonio
Querol's clinic twice within the period of one week accompanied by her aforesaid niece, Filomena
Inay, to consult the said physician who, after submitting her to a general medical examination,
found that she was suffering from dyspepsia and cancer of the stomach.

On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney Teodoro
R. Reinoso to whom she expressed her desire to make a will, in the presence of the Father Cordero's
sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent. Inasmuch as the aforesaid
attorney had to attend to other business, he could not finish his interview with the testatrix on the
first day and had to continue it the following day, also in the presence of Father Cordero, his sister,
Filomena Inay and some children who were then at the convent. Inasmuch as he did not finish the
interview on the second day, the said attorney returned again on the afternoon of the 28th and
continued it in the presence of the same persons who entered and left the sala. At the end of the
interview, Matea Abella ordered he niece, Filomena Inay, to bring her some papers which were in
her trunk, which she delivered to the said attorney. After the will had been drafted in Ilocano, the
dialect of the testatrix, Macario Calug read it to her and she approved it. When the will had been
copied clean, it was again read to the testatrix and she express her approval thereof, but inasmuch
as it was rather late at night, she did not care to sign the same suggesting that it be postponed to
the following day, April 29, 1932, which was done. At about 7:30 o'clock on the morning of April 29,
1932, the signing of the will took place in the corridor of the convent. The testatrix Matea Abella was
the first to sign it on a table in the presence of each and every one of the instrumental witnesses
thereto and of other persons, including Father Cordero. After the testatrix, each of the instrument
witnesses signed in the presence of the testatrix and of each and every one of the other witnesses.
After the will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies
thereof to the testatrix, retaining one for his file. On July 3, 1932, Matea Abella died of the senile
debility in the municipality of Sinait at the age of 88 years.

The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was
defective; that when one moved away from her and again approached her she was unable to
recognize him; that it was necessary to shout into her ear to call her for meals; that she used to
urinate on her clothes without being aware of it; that she had a very poor memory inasmuch as she
used to try to collect from her debtors in spite of the fact that they had already paid their debts;
that once, although she had sold a parcel of land for P60 she said she had sold it for P160; that she
was unable to go downstairs without assistance; that when she was called at mealtime she used to
answer: "Why, I have already eaten"; that she could not remember her properties nor the names of
her tenants; that she could no longer read; that she often repeated to her tenants the same
questions regarding their crops; that she had been suffering from the disabilities for more than two
months previous to her death; that the deceased complained of headache and of stomachache; that
she already began to be dotty five years before, and particularly a few days previous to her death;
that in her will she bequeathed properties which she had already donated to other persons.

We are face to face with two divergent theories regarding the mental state of the testatrix Matea
Abella at the time of the execution of her will, Exhibit A. The opponent claims that, inasmuch as the
testatrix was 88 years of age when she made her will, she was already suffering from senile debility
and therefore her mental faculties were not functioning normally anymore and that she was not fully
aware of her acts. As an indication of her senile debility, she attempted to prove that the testatrix
had very poor memory in connection with her properties and interest; that she could not go
downstairs without assistance, and that she could not recall her recent acts.

On the other hand, as to the mental sanity of the testatrix at the time of the execution of her will,
we have the undisputed fact of her having left her home in Sinait, Ilocos Sur, on April 13, 1932, in
order to go to San Fernando, La Union, to consult Dr. Antonio
Querol — of whose ability she had heard so much — regarding her headaches and stomach trouble,
stopping at the convent of the parish church; the fact of her having walked twice to the aforesaid
doctor's clinic, accompanied by her niece, Filomena Inay; the fact that she had personally furnished
the aforesaid doctor with all the necessary data regarding the history of her illness the fact of her
having brought with her in her trunk the deeds to her properties; the fact of her having called for
Attorney Teodoro R. Reinoso; the fact of her having personally furnished said attorney all the data
she wished to embody in her relative to her properties and the persons in whose favor she wished
to bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932, but the
following day, in order to be able to see it better, and the fact of her having affixed her signature, in
her own handwriting, to the original as well as to the copies of her will which consisted of nine
pages. All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf,
nor so lacking in intelligence that she could not, with full understanding thereof, dispose of her
properties and make a will. Neither senile debility, nor blindness, nor deafness, nor poor memory, is
by itself sufficient to incapacitate a person for making his ill (Avelino vs. De la Cruz, 21 Phil., 521;
Bagtas vs. Paguio, 22 Phil., 227; Jocson vs. Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo,
48 Phil., 485; Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p. 94, par. 44). The
mere fact that in her will Matea Abella disposed of properties, which she had already donated to
other persons at a prior date, is not an indication of mental insanity. At most it constitutes
forgetfulness or a change of mind, due to ignorance of the irrevocability of certain donations. lawphil.net

It is insinuated that the testatrix has been unduly influenced in the execution of her will. There is
nothing in the records establishing such claim either directly or indirectly. The fact of her having
stopped at the convent of the parish church of San Fernando, La Union, is not unusual in the
Philippines where, due to lack of hotels, the town convents are usually given preference by
strangers because they are given better accommodations and allowed more freedom. In the present
case, the testatrix Matea Abella was a stranger in San Fernando, La Union. Inasmuch as Father
Cordero, the parish priest of the said town, was well known to her having served in the church of
Sinait, Ilocos Sur, in the same capacity, she did not have any difficulties in obtaining
accommodations in his convent. The fact that Matea Abella stopped at a convent and enjoyed the
hospitality of a priest who gave her accommodations therein, nor the fact that the will was executed
in the convent in question in the presence of the parish priest and witnessed by another priest,
could certainly not be considered as an influence which placed her under the obligation to bequeath
of her property to the bishop of said diocese.
In view of the foregoing considerations, we are of the opinion and so hold: (1) That neither senile
ability, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the
presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties,
when there is sufficient evidence of his mental sanity at the time of the execution of the will; and
(2) that neither the fact of her being given accommodations in a convent, nor the presence of the
parish priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the
annulment of a legacy in favor of the bishop of a diocese made in her will by a testatrix 88 years of
age, suffering from defective eyesight and hearing, while she is stopping at a convent within the
aforestated diocese.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with
the costs against the appellant. So ordered.

G.R. Nos. L-46430-31 July 30, 1979

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ,

and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO
ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents.

Rafael Triumfante for petitioners.

Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.: 1äwphï1.ñët

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R
and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate
of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil
Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court   denied the probate of the will, declared null and void the two sales subject of the
1

complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the
private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the
properties in their possession and to reimburse the latter the net gain in the proportion that
appertains to them in the properties from the date of the firing of the complaint up to complete
restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs.

The antecedent events leading to the filing of these two consolidated actions are the following.

On November 25, 1949, Don Jesus Alsua and his wife, Doñ;a Florentina Rella, both of Ligao, Albay,
together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this
judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized
agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing
properties of the spouses Don Jesus and Doñ;a Florentina enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to
wit: 
têñ.£îhqwâ£

(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua
spouses, which inventory consists of 97 pages, all of them signed by the spouses
and all the above named heirs in the left margin of every page (parafo primers).

(2) An acknowledgment of the spouses that all the properties described in the
inventory (Annex A) are conjugal properties with the exception of five parcels of land
Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which
are paraphernal properties of the late Doñ;a Tinay (segundo parafo).

(3) An acknowledgment that during their marriage, they had nine children but five of
them died minors, unmarried (parafo tercero y cuatro).
 (4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to
avoid Possible misunderstanding among their children concerning the inheritance
they are entitled to in the event of death of one of them they have decided to
effectuate an extrajudicial partition of all the properties described in Annex "A"
thereto under the following terms and conditions: (Parafo quinto):

To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with
the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of
land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.

To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of
land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.

To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with
the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of
land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.

To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties
with the improvements thereon specifically described from pages 33-47 of said inventory or, 47
parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of
P58,830.00. têñ.£îhqwâ£

(a) Each and every one of the heirs named above acknowledge and admit that the
totality of the properties allotted and adjudicated to the heirs as described in the
preceding paragraph, constitute one half of the properties described in Annex "A",
including any amount of cash deposited.

(b) That all the heirs acknowledge and admit that all the properties assigned to them
as their hereditary portion represent one-half not only of the conjugal properties but
includes the paraphernal properties — waiving now and forever any complaint or
claim they have or they may have concerning the amount, value, extension and
location of the properties that are allotted to each and everyone. They also waive
any claim they have or they may have over the remaining portion of the properties,
which spouses reserved for themselves.

(c) That in case of death of one of the spouses, each and everyone of the heirs
acknowledge that the properties which are left in the possession of the surviving
spouse, including any amount in cash, are even less than the one- half that should
correspond in absolute ownership as his legitimate participation in the conjugal
properties. In consequence they waive any claim that they have or may have over
said portion of said properties or any amount in cash during the lifetime of the
surviving spouse, including any right or claim they have or they may have over the
paraphernal properties of Doñ;a Tinay in the event the surviving spouse is Don
Jesus.

(d) The spouses on their part in case of death of any one of them, the surviving
spouse waives any claim he or she may have over the properties assigned or
adjudicated to the heirs under and by virtue of this deed. The properties which were
reserved for them (the spouses) should be considered as his or her legitimate
participation in the conjugal properties and the fair compensation of his or her
usufruct on the properties that the surviving spouse reserved for himself or herself
which shag be distributed in equal shares among the heirs upon his or her death
unless said properties of some of them have been disposed of during the lifetime of
the surviving spouse.

(e) Any heir who may dare question the validity and legitimacy of the provision
contained herein shall be under obligation to pay to the other heirs, in the concept of
damages and prejudice, the sum of P5,000.00 plus attorney's fees.

(f) The provisions of this deed shall bind the successors of the herein heirs.
 (g) In the event of death of one of the spouses, the properties assigned or
adjudicated to each and everyone of the heirs shall be considered as his share or
participation in the estate or as his inheritance left by the deceased and each heir
shall become the absolute owner of the properties adjudicated to him under this
deed.

On January 5, 1955, Don Jesus and Doñ;a Florentina, also known as Doñ;a Tinay separately
executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in
conformity and in implementation of the extrajudicial partition of November 25, 1949. Their
holographic wills similarly provided for the institution of the other to his or her share in the conjugal
properties, the other half of the conjugal assets having been partitioned to constitute their legitime
among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in
the event of future acquisitions of other properties by either of them, one-half thereof would belong
to the other spouse, and the other half shall be divided equally among the four children. The
holographic will of Doñ;a Tinay written in Spanish reads, as translated:  têñ.£îhqwâ£

TESTAMENT

I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua,

resident of and with postal address in the Municipality of Ligao, Province of Albay,
Philippines, being in the full possession of my mental and physical faculties freely
and spontaneously execute this my last will and testament in my handwriting and
signed by me and expressed in the Spanish language which I speak, write and
understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of
Albay, and in which I ordain and provide:

First: That in or about the year 1906 I was married to my husband Don Jesus Alsua
and begot nine (9) children with him, four (4) of whom are still living and they are
Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5)
died during their minority, single and without children.

Second: That after my marriage to my husband Don Jesus Alsua and during our
conjugal union, and as a result of our efforts and industry, we were able to acquire
conjugal properties consisting of abaca (abales) and cacao lands and urban lands
registered in the office of the Registry of Property of the Province of Albay and in the
City of Manila.

Third: That I institute as my heirs with right to inherit the following- my spouse Don
Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half,
to my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando
Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando
Buenviaje, in equal parts. It is to be understood, however, that the other half that
corresponds as legitime to my above named children have already been given to
them, pursuant to a document dated November 25, 1949 and ratified on the same
day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15;
Lib. 11; Series of 1949) enjoining each and everyone of them to respect and
faithfully comply with each and every clause contained in the said document.

Fourth: That should I acquire new properties after the execution of this testament,
the same shall be partitioned among my spouse and above named children or the
children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in equal parts.

Fifth: That I name as my executor my husband Don Jesus Alsua without having to
post any bond.

IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this

5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. 
£îhqwâ£
têñ.

(SGD.) FLORENTINA
R. DE ALSUA
 (Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same
day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.

On May 21, 1956, the spouses Don Jesus and Doñ;a Tinay filed before the Court of First Instance of
Albay their respective petitions for the probate of their respective holographic wins which were
docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485
(Doñ;a Florentina Ralla de Alsua, Petitioner).

On August 14, 1956, the spouses Don Jesus and Doñ;a Tinay executed their mutual and reciprocal
codicils amending and supplementing their respective holographic wins. Again, the codicils similarly
acknowledged and provided that one-half of all the properties of the spouses, conjugal and
paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the
"Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses
Don Jesus and Doñ;a Tinay) the other half or those not disposed of to the said legitimate heirs
under the above agreement of partition, and that they mutually and reciprocally bequeathed unto
each other their participation therein as well as in all properties which might be acquired
subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever
belongs to him or her or would pertain to him or her, would be divided equally among the four
children. It was also declared in both codicils that upon the death of either of the spouses, the
surviving spouse was designated mutually and reciprocally as the executor or administrator of all the
properties reserved for themselves.

The codicil executed by Doñ;a Tinay, written in Spanish reads, as translated:  têñ.£îhqwâ£

CODICIL

This codicil supplements and amends the preceding testament. That my spouse and
I have agreed to divide the properties which we have acquired into 2 parts. The 1/2
that would correspond to me covers all the properties that I have partitioned among
my children in the Document of Partition dated November 25, 1949 before Notary
Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of
1949) (and) even as the properties which by reason of this testament I leave to my
husband as his share and the other half that corresponds to my husband constitutes
an the properties that up to now have not been disposed of, particularly the urban
lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of
Manila, with the exception of that portion that I bequeath to my husband as his
inheritance and his legitimate.

That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and
my children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave
to my aforecited children all the properties described in the above mentioned
Document of Partition dated November 25, 1949 which correspond to each one of
them and in the profits (fruits) expressed in the same, and in the event that the
properties granted to one or any of my children should exceed in quantity or value
those corresponding to another or others, I hereby declare that it is my will that the
same be divided among my children as their inheritance from the free portion of my
property.

I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is
my will that any and all kinds of property that pertain to me or would pertain to me,
which have not been disposed of pursuant to the partition, should be divided equally
among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August
14,1956.  têñ.£îhqwâ£
 (SGD.) FLORENTINA
RALLA DE ALSUA

(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)

And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate
but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on
the same day of August 14, 1956, the spouses Don Jesus and Doñ;a Tinay both filed their respective
supplemental petitions for the probate of their respective codicils in the probate proceedings earlier
filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly
admitted to probate.

Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus was named executor to serve
without bond in an order issued by the probate court on October 13, 1959. Letters testamentary
having been issued in favor of Don Jesus, he took his oath of office and performed his duties as
such until July 1, 1960.

Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the
presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of
all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial
Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting
witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh.
A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly
cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955
and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his
four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such
properties be taken into account in the partition of his estate among the children; and (c) it
instituted his children as legatees/devisees of certain specific properties, and as to the rest of the
properties and whatever may be subsequently acquired in the future, before his death, were to be
given to Francisca and Pablo, naming Francesca as executrix to serve without a bond.

After all debts, funeral charges and other expenses of the estate of Doñ;a Tinay had been paid, all
her heirs including Don Jesus, submitted to the probate court for approval a deed of partition
executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the
partition of 1949, the holographic will and codicil of Doñ;a Tinay. On July 6, 1960, the court
approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings
on the estate of Doñ;a Tinay.

On May 6,1964, Don Jesus Alsua died.

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of
November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the
Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions
thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on
the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the
execution of the alleged will; (b) that the will was executed under duress or influence of fear or
threats; or it was procured by undue and improper pressure and influence on the part of the main
beneficiaries and of person or persons in collusion with them, or the signature of the testator was
secured by or thru fraud; (c) that the will was not executed according to the formal requirements of
the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of
1949 agreed upon by him, his deceased spouse, Doñ;a Tinay, and all his children, Francisco, Pablo,
Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus'
own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and
implementing the said partition of 1949 which had already been partially executed by all the
signatories thereto in the partition of the estate of Doñ;a Tinay in December, 1959.

On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the
Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She
then filed with the Probate Court an inventory of the properties of the estate which, according to the
oppositors therein (the private respondents now) did not include some properties appearing in the
agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the
"Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus.
According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots
with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total
assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00 per
hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi City
including the lot and the building presently occupied by the well-known "Mayon Hotel" with an
assessed value of approximately P117,260.00 or a probable market value at the time of
P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua
and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to
Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of
the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that
she bought the properties from their father and presenting the two Deeds of Sale now being
assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural
land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962
evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the
oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with
damages, which upon agreement of the parties was then jointly heard and tried with Special
Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on
November 14, 1959.

After a joint hearing of the merits of these two cases, the Court of First Instance of Albay
promulgated a decision on January 15, 1973, the dispositive portion of which states:  têñ.£îhqwâ£

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:

1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had
been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be
made the basis for division and distribution of the estate of said testator;

2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the
sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are
lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The
Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the
defendant, Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and
Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision
in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus
— têñ.£îhqwâ£

IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it
hereby sets aside the decision appealed from in the following manner: (1) in Special
Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case
No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby
declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to
render an accounting of properties in their possession and to reimburse the plaintiffs
the net gain, in the proportion that appertains to them in the properties subject of
litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the
complete restoration of the properties pertaining to (plaintiffs) pursuant to Article
2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the
plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.

Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit:  têñ.£îhqwâ£

I. The respondent Court of Appeals erred in not affirming the findings of the probate
court (Special Proceedings No. 699) that private respondents, oppositors to the
probate of the will, are in estoppel to question the competence of testator Don Jesus
Alsua.
 II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus
Alsua cannot revoke his previous will.

III. The respondent court's finding is grounded entirely on speculation, surmises or

conjectures resulting in a gross misapprehension of facts.

IV. The respondent court grossly erred in annulling the sales of August 26, 1961
(Exh. U), and of November 26, 1962 (Exh. W).

On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no
moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his
will cannot be determined by acts of the herein private respondents as oppositors to the will in
formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don
Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings
No. 485, Testate Estate of Doñ;a Florentina Ralla de Alsua and in subsequently petitioning the court
not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which
petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private
respondents from questioning the competence of Don Jesus Alsua.

The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case
of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo,  50 O.G.
614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was
still in the Court of Appeals, and We quote: têñ.£îhqwâ£

Finally, probate proceedings involve public interest, and the application therein of the
rile of estoppel, when it win block the ascertainment of the truth as to the
circumstances surrounding the execution of a testament, would seem inimical to
public policy. Over and above the interest of private parties is that of the state to see
that testamentary dispositions be carried out if, and only if, executed conformably to
law.

The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502:  têñ.£îhqwâ£

'The primary purpose of the proceeding is not to establish the

existence of the right of any living person, but to determine whether
or not the decedent has performed the acts specified by the pertinent
statutes, which are the essential prerequisites to personal direction of
the mode of devolution of his property on death. There is no legal
but merely a moral duty resting upon a proponent to attempt to
validate the wishes of the departed, and he may and frequently does
receive no personal benefit from the performance of the act.

One of the most fundamental conceptions of probate law, is that it is

the duty of the court to effectuate, in so far as may be compatible
with the public interest, the devolutionary wishes of a deceased
person (Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787;
Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672;
Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson,
S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581).
To that end, the court is, in effect, an additional party to every
litigation affecting the disposal of the assets of the deceased. Matter
of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'

The next issue that commands Our attention is whether the respondent court erred in not allowing
the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance
was based on speculations, surmises or conjectures, disregarding the facts as found by the trial
court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed
under Article 839 which provides as follows:  têñ.£îhqwâ£

Art. 839. The will shall be disallowed in any of the following cases:
 (1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a wilt 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.

The issue under consideration appears to Us to have been answered by the respondent court itself
when it accepted the findings of the trial court on the due execution of the questioned will and
testament of Don Jesus, declaring: têñ.£îhqwâ£

... and going back to the previous question, whether the questioned will and
testament of November 14, 1959, Exh. A, was executed in accordance with Arts.
805-809 of the New Civil Code, this Tribunal from the very beginning accepts the
findings of the inferior court concerning the question, 
têñ.£îhqwâ£

On October 2, 1959, Doñ;a Florentina died at Ligao, Albay. About 2

weeks after said death of his wife, Don Jesus Alsua decided to make
a new will, thereby revoking and cancelling his previous holographic
will which he made on January 5, 1955 and also its codicil dated
August 14, 1956. In the presence of his bookkeeper and secretary,
Esteban P. Ramirez, he crossed out in ink each and every page of
said page he wrote on each page the word "cancelado", and affixed
his signature thereon (Exh V-5, V-6, consecutively up to and
including Exh. V-14). He then instructed Ramirez to make a list of all
s properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio
Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge
S, Imperial, who, incidentally, is now a judge of the Court of First
Instance of Naga City, Camarines Sur. Don Jesus informed his
lawyers that he wanted to make a new will, and accordingly gave
more detailed instructions as to how he wanted to divide his
properties among his four children. He handed to them a list and on
the left he indicated the name of the child to whom the listed
properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major
language, as in fact his conversations with Don Gregorio are always
in Spanish. A few days before November 14, 1959, Atty. Jorge S.
Imperial showed to Don Jesus the semi-final draft of the will and
after reading it Don Jesus said that it was as directed by him, and
after making a few minor corrections, he instructed Atty. Jorge S.
Imperial to put the win in final form. He further told Atty, Jorge
Imperial that the signing of the will should be at his home in Ligao, in
the morning of November 14, 1959, and that the witnesses should be
Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose
Madarieta who is a friend of the family; and Mr. Jose Gaya who is a
sort of employee of Don Jesus.

Thus in the morning of November 14, 1959, Don Gregorio and Atty.
Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence
of Mr. Ramon Balana, and informed the latter that Don Jesus was
requesting him to be one of the attesting witnesses to his will. Mr.
Balana, having a very high regard for Don Jesus, considered it an
honor to be so asked, and gladly went with the Imperials. They
arrived at the residence of Don Jesus at Ligao; Albay, almost ten
o'clock of that morning, and they were ushered in by Mr. Jose Gaya,
and the latter requested them to be seated at the usual receiving
room on the ground floor while he announced their arrival to Don
Jesus who was on the second floor. Soon Don Jesus came down,
carrying with him the will to be signed placed inside a cartolina
folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and
immediately joined them in conversation. Mr. Gaya called for Mr. Jose
Madarieta, whose residence is just across the road from the house of
Don Jesus. Mr. Madarieta was already informed by Don Jesus himself
about the fact of signing the will that morning, and so, on being
advised by Mr. Gaya that the Imperials had already arrived,
Madarieta proceeded to the residence of Don Jesus, without much
delay. With the coming of Madarieta and the coming back of Gaya,
there were now six people gathered in the living room, namely: Don
Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr. Ramon
Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who
testified for the petitioner declared that Don Jesus was in bright and
lively conversation which ran from problems of farming and the
merits of French-made wines. At 1 1:00 o'clock, Don Gregorio made
a remark that it is about time to do what they were there for, and
this was followed by a more or less statement from Jesus, who said: 
£îhqwâ£
têñ.

'Preisamente es por lo que he Hamado a ustedes que

esten presentes para ser testigos de rni ultimo
voluntad y testamento que ha sido preparado por el
abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documento tengo aqui conmigo y
encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis instrucciones,
Como saben ustedes tengo cuatro (4) hijos todos
egos.' (pp. 43-44, t.s.n., hearing of December 7,
1967, Sarte.

On request of Don Jesus, all of them moved to the big round table on
another part of the same sala for convenience in signing because
there were chairs all around this table. The will which consisted of
nine pages, with a duplicate, and triplicate was laid on the round
table and the signing began, with Atty. Jorge S. Imperial assisting
each person signing by indicating the proper place where the
signature shall be written. Don Jesus, as testator, signed first. After
signing the original and the two other sets, the three sets were then
passed to Mr. Ramon Balana who signed as attesting witness. After
Mr. Balana, Mr. Jose Madarieta signed next as another attesting
witness, and when Mr. Madarieta finished signing all the three sets,
the same were passed to Mr. Jose Gaya who also signed as the third
attesting witness. On each of the three sets, Don Jesus signed ten
times, — one on the margin of each of the nine pages, and at the
end of the instrument proper. Each of the three attesting witnesses
(Balana, Madarieta and Gaya) signed eleven times on each set, —
one on the margin of each of the nine pages, one at the end of the
instrument proper and one below the attestation clause. The original
will was marked as Exh. A (or set A); the duplicate as Exh. K (or set
K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr.
Gaya were Identified by Mr. Balana, Mr. Madarieta and Atty. (now
Judge) imperial. It was also clearly established that when Don Jesus
signed the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present
and witnessed said signing, and that when each of these three
witnesses was signing, Don Jesus and the two other attesting
 witnesses were present and Witnessing said Signing. The signing by
the testator and the attesting witnesses having been completed, Atty.
Jorge S. Imperial as Notary Public with commission for the entire
province of Albay, notarized the wilt and sealed it with his notarial
seat which seal he brought along that morning. After all the three
sets were notarized, they were all given back to Don Jesus who
placed them inside the same folder. At that moment, it was already
about 12:30 P.M. and Don Jesus invited all of them to lunch, which
invitation was gladly accepted by all of then-L (pp. 474-480, Joint
Record on Appeal in CA-G.R. No. 54492-R)

which findings are supported by the evidence, - it is quite difficult to conclude that
the same had not complied with the requirements of Arts. 804- 806 of the New Civil
Code. ... (CA Decision, pp. 13-16, as translated).

This cited portion of the appealed decision accepts as a fact that the findings of the lower court
declaring the contested will as having been executed with all the formal requirements of a valid will,
are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter,
review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the
lower court and the respondent appellate court have declared that these are the facts and such facts
are fully borne and supported by the records. We find no error in the conclusion arrived at that the
contested will was duly executed in accordance with law. We rule that the questioned last will and
testament of Don Jesus Alsua fully complied with the formal requirements of the law.

Respondent court, however, denied probate of the will after ,'noting certain details which were a
little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that
the spouses Don Jesus and Doñ;a Tinay together with their four children Francisco, Pablo, Amparo
and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided
the conjugal properties of the spouses between the spouses themselves and the children under the
terms and conditions and dispositions herein before stated and to implement its provisions, Don
Jesus and Doñ;a Tinay subsequently executed separately their respective holographic wigs both
dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as
reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and
upon the death of Doñ;a Tinay, Don Jesus was appointed executor of the will and in due time the
partition of the properties or estate of Doñ;a Tinay was approved by the probate court on July 6,
1960.

The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable
contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating
said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his
codicil of August 14, 1956, and further barring him from executing his new will and testament of
November 14, 1959, now the subject of the probate proceedings elevated to this Court.

We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of
November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil
Code which are applicable hereto. These Articles provide as follows:  têñ.£îhqwâ£

Art. 1056. If the testator should make a partition of his property by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs. ...

Art. 1271. All things, even future ones, which are not excluded from the commerce
of man, may be the subject-matter of contracts.

Nevertheless, no contract may be entered into with respect to future inheritances,

except those the object of which is to make a division inter vivos of an estate, in
accordance with Article 1056.

All services not contrary to law or to good morals may also be the subject- matter of
contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be
deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one
who has made a prior will or testament. In other words, Article 1056 being an exception cannot be
given a wider scope as to include in the exception any person whether he has made a will or not.

Respondent court citing the same Article concluded that under both the old and new Civil Code, a
person who executes a will is permitted at the same time or a little thereafter or even before as long
as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article
1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the
partition presupposes the execution of the will that it ratifies or effectuates, citing the case
of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial
partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5,
1955 and in the codicil of August 14, 1956.

Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the
Supreme Court categorically declared the necessity of a prior will before the testator can partition
his properties among his heirs, and We quote the pertinent portions of the decision:  têñ.£îhqwâ£

The first question to decide in the instant appeal is whether the partition made by
Sabina Almadin of her property among her nieces, the defendants and appellants
herein, was valid and enforceable.

Article 1056 of the Civil Code provides:

Art. 1056. If the testator should make a partition of his property by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heirs.

The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:

Considering that the language of article 1056 cannot be interpreted to mean that a
person may, by acts inter vivos, partition his property referred to in the section
wherein said article is found, without the authority of a testament containing an
expression of his last will, or the authority of law, for, otherwise, a partition thus
made would be tantamount to making a will in a manner not provided for,
authorized, nor included in the chapter referring to testaments, and especially, to the
forms thereof, which is entirely different from the legal consequences of a free
disposition made by parents during their lifetime, whereby they give to their children
the whole or a part of their property;

Considering that, inasmuch as the second paragraph of article 1271 makes reference
to the aforesaid article, in providing that no contracts may be entered into with
respect to future inheritances except those the object of which is to make a division
inter vivos of the estate in accordance with article 1056, it is evident that said
difference likewise leads to the conclusion that a partition thus made should be on
the basis of a testamentary or legal succession and should be made in conformity
with the fundamental rules thereof and the order of the heirs entitled to the estate,
because neither of the two provisions could be given a wider meaning or scope than
that they simply provide for the division of the estate during the lifetime of the
owner, which, otherwise, would have to be done upon the death of the testator in
order to carry into effect the partition of the estate among the persons interested.

Manresa comments on the same article as follows:

A distinction must be made between the disposition of property and its division; and
the provision of article 1056 authorizing the testator to dispose of his property by
acts inter vivos or by last will, must be understood in accordance with this
distinction. The Idea is to divide the estate among the heirs designated by the
testator. This designation constitutes the disposition of the properties to take effect
after his death, and said act must necessarily appear in the testament because it is
 the expression of the testator's last will and must be surrounded by appropriate
formalities. Then comes the second part, to wit, the division in conformity with that
disposition, and the testator may make this division in the same will or in another
will, or by an act inter vivos. With these words, the law, in article 1056 as well as in
article 1057, which we shall hereafter examine, makes allusion to the forms or
manner of making the partition and not to the effects thereof, which means that, for
purposes of partition the formal solemnities which must accompany every testament
or last will are not necessary. Neither is it necessary to observe the special for.
realities required in case of donations, because it is not a matter of disposing
gratuitously of properties, but of dividing those which already have been legally
disposed of.

It is thus seen that both the Spanish Supreme Court and the learned and
authoritative commentator, Manresa, are of opinion that a testator may, by an act
inter vivos, partition his property, but he must first make a will with all the
formalities provided for by law. And it could not be otherwise, for without a will there
can be no testator; when the law, therefore, speaks of the partition inter vivos made
by a testator of his property, it necessarily refers to that property which he has
devised to his heirs. A person who disposes of his property gratis inter vivos is not
called a testator, but a donor. In employing the word "testator," the law evidently
desired to distinguish between one who freely donates his property in life and one
who disposes of it by will to take effect after his death.

We are not in conformity with the holding of the respondent court that the extrajudicial partition of
November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy
had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his
codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is
permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code
even before executing his will as long as he mentions this fact in the will, is not warranted under the
ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule,
therefore, that the respondent court erred in denying probate to the will of Don Jesus dated
November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of
1949 was contractually bound by the provisions thereof and hence could not revoke his participation
therein by the simple expedience of making a new will with contrary provisions or dispositions. It is
an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition;
neither is it a valid or enforceable contract because it involved future inheritance; it may only be
given effect as a donation inter vivos of specific properties to the heirs made by the parents.

Considering that the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial compliance with
the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there
could have been no valid donation to the children of the other half reserved as the free portion of
Don Jesus and Doñ;a Tinay which, as stated in the deed, was to be divided equally among the
children for the simple reason that the property or properties were not specifically described in the
public instrument, an essential requirement under Article 633 which provides as follows:  têñ.£îhqwâ£

Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the
amount of the encumbrances to be assumed by the donee expressed.

The acceptance must be made in the deed of gift or in a separate public writing; but
it shall produce no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof

shall be given the donor, and this proceeding shall be noted in both instruments.

This other half, therefore, remained as the disposable free portion of the spouses which may be
disposed of in such manner that either of the spouses would like in regards to his or her share in
such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to
the children what belongs or-would pertain to him or her. The end result, therefore, is that Don
Jesus and Doñ;a Tinay, in the Deed of 1949, made to their children valid donations of only one-half
of their combined properties which must be charged against their legitime and cannot anymore be
revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with
regards to their respective shares.

Upon the death of Doñ;a Tinay on October 2, 1959, her share in the free portion was distributed in
accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956.
It must be stressed here that the distribution of her properties was subject to her holographic win
and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the
same date. This is fundamental because otherwise, to consider both wills and codicils jointly would
be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because
upon the death of Doñ;a Tinay, only her estate was being settled, and not that of Don Jesus.

We have carefully examined the provisions of the holographic will and codicil of Doñ;a Tinay and We
find no indication whatsoever that Doñ;a Tinay expressly or impliedly instituted both the husband
and her children as heirs to her free portion of her share in the conjugal assets. In her holographic
will, mention of her children as heirs was made in the fourth clause but it only provided that, to
wit: 
têñ.£îhqwâ£

Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi

testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada
en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y
la otra mitad (1/2) para mis hijos en partes iguales.

For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new
properties after the execution of this testament, the same shall be partitioned among my spouse
and above named children or the children mentioned in above par. 3 in the same proportion, that is,
one- half (1/2) to my spouse; and the other half to my children in equal parts." From the above-
quoted provision, the children would only inherit together with Don Jesus whatever new properties
Doñ;a Tinay would acquire after the execution of her will.

Likewise, the codicil of Doñ;a Tinay instituted her husband as sole heir to her share in the free
portion of the conjugal assets, and We quote that part of the codicil:  têñ.£îhqwâ£

Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de ni
cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en
favor de mis hijos en la escritura de reparticion precitada y que excedieran de la
mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos
aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este
testamento.

Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es
mi voluntad que todas las propiedades de todo genero que me pertenecen y me
pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre
mis herederos mencionados despues de mi muerte.

Again for purposes of clarity and convenience, the above portion states:  têñ.£îhqwâ£

I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.

In case it should be God's will that I survive my spouse, I hereby declare that it is
my will that any and all kinds of property that pertains to me or would pertain to me,
which have not been disposed of pursuant to the partition, should be divided equally
among my above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate of Doñ;a Tinay in
the event that she should be the surviving spouse. To stress the point, Doñ;a Tinay did not oblige
her husband to give equally to the children, upon his death, all such properties she was bequeathing
him.

Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959
in view of Our holding that Doñ;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow
the properties equally to the children, it follows that all the properties of Doñ;a Tinay bequeathed to
Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by
any condition obligation or proviso.

Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949
and had in fact conformed to said Partition by making a holographic will and codicil with exactly the
same provisions as those of Doñ;a Tinay, which respondent court sustained. We rule, however, that
Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would
remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be revoked by
the testator at any time before his death. Any waiver or restriction of this right is void." There can
be no restriction that may be made on his absolute freedom to revoke his holographic will and
codicil previously made. This would still hold true even if such previous will had as in the case at
bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only
authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly,
the rights to the succession are transmitted only from the moment of the death of the decedent
(Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property
before his death to whomsoever he chose, provided the legitime of the forced heirs are not
prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole
Alsua estate is being contested.

After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining
estate of Doñ;a Tinay in her holographic will and codicil resulting in all such properties becoming the
properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his
previous holographic will and codicil, by making another win expressly cancelling and revoking the
former, the next issue for the Court's resolution is the validity of the provisions of the contested will.
Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will
may be entertained by the probate court, the Court had, on more than one occasion, passed upon
the intrinsic validity of a will even before it had been authenticated. Thus We declared in Nuguid v.
Nuguid, 17 SCRA 499:  têñ.£îhqwâ£

The parties shunted aside the question of whether or not the will should be allowed
to probate. For them, the meat of the case is the intrinsic validity of the wilt
Normally this comes only after the court has declared that the will has been duly
authenticated. ...

... If the case were to be remanded for probate of the wilt nothing will be gained. On
the contrary, this litigation win be protracted and for ought that appears in the
record, in the event of probate or if the court rejects the will probability exists that
the case win come up once again before us on the issue of the intrinsic validity or
nullity of the wilt Result: waste of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a behalf that we might as well meet
head-on the time of the validity of the provisions of the will in question. ...

The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express
revocation of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement
requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken
into account in the partition of his estate; the institution of all his children as devisees and legatees
to certain specific properties; a statement bequeathing the rest of his properties and all that may be
acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca
as executrix without bond.

Considering these testamentary provisions, a close scrutiny of the properties distributed to the
children under the Deed of 1949 and those distributed under the contested will of Don Jesus does
not show that the former had in fact been included in the latter. This being so, it must be presumed
that the intention of Don Jesus in his last win was not to revoke the donations already made in the
Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets
totally left to his free disposal and that which he received as his inheritance from Doñ;a Tinay. The
legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or
intimated otherwise. The properties that were disposed of in the contested will belonged wholly to
Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.

If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was,
We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so.
We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit:  têñ.£îhqwâ£

... nevertheless it would be venturesome for the court to advance its own Idea of a
just distribution of the property in the face of a different mode of disposition so
clearly expressed by the testatrix in the latter will. ...

It would be a dangerous precedent to strain the interpretation of a will in order to

effect what the court believes to be an equitable division of the estate of a deceased
person. The only functions of the courts in these cases is to carry out the intention of
the deceased as manifested in the wig. Once that intention has been determined
through a careful reading of the will or wills, and provided the law on legitimes has
not been violated, it is beyond the place of judicial cognizance to inquire into the
fairness or unfairness of any devise or bequeast. The court should not sit in
judgment upon the motives and sentiments of the testatrix, first, because as already
stated, nothing in the law restrained her from disposing of her property in any
manner she desired, and secondly, because there are no adequate means of
ascertaining the inward process of her conscience. She was the sole judge of her
own attitude toward those who expected her bounty. ...

Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored
the petitioner to the prejudice of the other heirs who would have been entitled to an equal share
under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man
of culture and honor and would not snow himself to violate the previous agreement, and the other
as one whose mental faculties or his possession of the same had been diminished considering that
when the will was executed, he was already 84 years of age and in view of his weakness and
advanced age, the actual administration of his properties had been left to his assistant Madarieta
who, for his part received instructions from Francisco and her husband, Joseph Betts. According to
the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the
New Civil Code which provides as follows:  têñ.£îhqwâ£

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,

The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or
partial imbecility from disease of body or from age-does not render a person incapable of making a
will. 
têñ.£îhqwâ£

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. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the
testator be of sound mind at the time of its execution, and under Article 800, the law presumes that
every person is of sound mind in the absence of proof to the contrary. In the case at bar, the
acceptance by the respondent court of the findings of fact of the trial court on the due execution of
the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law. But more than that, gleaned from
the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a
mentally incapacitated person nor one suffering from "senile dementia" as claimed by private
respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave
detailed instructions to his lawyer as to how he wanted to divide his properties among his children
by means of a list of his properties should pertain; (b) the semi-final draft of the contested will
prepared by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at
his house in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which
ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by
Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of
their meeting or gathering, to wit: têñ.£îhqwâ£

Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser
testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado
Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo
y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis
ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.

Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.

In rejecting probate of the wilt respondent court further pointed out other details which, in the
words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of
fife" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his
codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is
concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged
redundant and unnecessary proceedings undertaken by Don Jesus in the properties under question
to petitioner Franciso Alsua-Betts when the same properties had already been bequeathed to her in
the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for
finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more
sympathetic to Francisca so as to or forget the former depriving them of benefits already given to
them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as
to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."

We agree with the petitioner that these details which respondent court found difficult to reconcile
with the ordinary course of things and of life are mere conjectures, surmises or speculations which,
however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact
that Don Jesus did not cause his will to be probated during his lifetime while his previous
holographic win and codicil were duly probated when he was still alive is a mere speculation which
depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will
be probated during the lifetime of the testator and for not doing so there cannot arise any favorable
or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of
the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal
ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever
reason Don Jesus had for selling the properties to his daughter Francisca when he had already
assigned the same properties to her in his will. While We can speculate that Don Jesus desired to
have possession of the properties transferred to Francisca after the sale instead of waiting for his
death may be a reasonable explanation or speculation for the act of the testator and yet there is no
certainty that such was actually the reason. This is as good a conjecture as the respondents may
offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it
can never be admitted as evidence.

Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds
of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity.
Private respondents mainly contend that the sales were fictitious or simulated, there having been no
actual consideration paid. They further insist that the issue raised is a question of fact and,
therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand,
petitioners herein maintain that it was error for the respondent court to set aside on appeal the
factual findings of the trial court that the two sales were valid.

It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive;
and this same principle applies even if the Court of Appeals was in disagreement with the lower
court as to the weight of evidence with a consequent reversal of its findings of fact. But what should
not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the record or those which are based upon
substantial evidence. The general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions
to the general rule, where We have reviewed and revised the findings of fact of the Court of
Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be
reviewed on appeals by certiorari are:

1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures

(Joaquin vs. Navarro, 93 Phil. 257);

2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil.
15);

3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);

4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27,
1953);

5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins.
Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).

In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of
the contested sales was not supported by the evidence on record and adduced during the trial.

Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over
agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the
consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don
Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again
not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of
sale over urban lots executed on November 16, 1962 for the consideration of Eighty Thousand Pesos
(P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery.
(3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as
witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of
Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisco
under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a
Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of
P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank
of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of ?
47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5 ",
endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were
not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No.
2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-
6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax
Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary
evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total
consideration of P150,000.00.

The claim of the private respondents that the sales were fictitious and void for being without cause
or consideration is as weak and flimsy as the ground upon which the respondent court upheld said
claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation
that there was nothing in the evidence that showed what motivated Don Jesus to change his mind
as to favor Francesca and discriminate against the other children. The two contracts of same
executed by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the
genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15
years standing. That the consideration stated in the contracts were paid is also sufficiently proved as
the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua,
as a witness. The latter cannot now deny the payment of the consideration And even of he now
allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 "
and "X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given
to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the
annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on
the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.

Private respondents further insist that the sales were fraudulent because of the inadequacy of the
given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the
case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to shock the court's conscience,
considering that the price paid was much higher than the assessed value of the subject properties
and considering that the sales were effected by a father to her daughter in which case filial love
must be taken into account.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The
decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case No.
3068 is hereby reinstated, with costs against respondents.

SO ORDERED.

EN BANC

G.R. No. L-6322 February 21, 1912

DOLORES AVELINO, as administratrix of the estate of Pascual de la Cruz, Plaintiff-Appellee, vs.

VICTORIANA DE LA CRUZ, Defendant-Appellant.

Buencamino, Diokno, Mapa, Buencamino, Jr. Platon & Lontoc for appellant.
Alfonso Mendoza for appellee.

JOHNSON, J. :chanrobles virtual law library

The present is an appeal from an order of the Honorable George N. Hurd, judge of the Court of
First Instance of the city of Manila, in which he had legalized the will of the said Pascual de la
Cruz, deceased.chanroblesvirtualawlibrary chanrobles virtual law library

The contention of the opponent is that at the time of the making of the will the said Pascual de
la Cruz was blind and had been for a number of years, and was incompetent to make the will in
question.chanroblesvirtualawlibrary chanrobles virtual law library

Against this contention of the opponent, all of the witnesses who signed the will were called as
witnesses, and each declared that the deceased was of sound mind at the time said will was
made and fully understood its contents and signed the same in their presence and that they
each signed the will in the presence of each other, as well as in the presence of the
deceased.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant attempted to show that the deceased was incompetent to make his will because
he was blind at the time the same was executed and had been for several years theretofore.
There is absolutely no proof to show that the deceased was incapacitated at the time he
executed his will. No presumption of incapacity can arise from the mere fact that he was blind.
The only requirement of the law as to the capacity to make a will is that the person shall be of
age and of sound mind and memory. (Sec. 614, Code of Procedure in Civil Actions.) Section 620
of the same code prohibits blind persons from acting as witnesses in the execution of wills, but
no limitation is placed upon the testamentary capacity, except age and soundness of
mind.chanroblesvirtualawlibrary chanrobles virtual law library

In our opinion the record contains nothing which justifies the modification of the order made
legalizing the will in the present case. The order of the lower court admitting to probate and
legalizing the will in question is therefore hereby affirmed with costs.

Arellano, C.J., Torres, Carson, Moreland and Trent, JJ., concur.

G.R. No. L-55322 February 16, 1989

MOISES JOCSON, petitioner,
vs.
HON. COURT OF APPEALS, AGUSTINA JOCSON-VASQUEZ, ERNESTO
VASQUEZ, respondents.

Dolorfino and Dominguez Law Officers for petitioner.

Gabriel G. Mascardo for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court of the decision of the
Court of Appeals in CA- G.R. No. 63474, promulgated on April 30, 1980, entitled "MOISES JOCSON,
plaintiff-appellee, versus AGUSTINA JOCSON-VASQUEZ and ERNESTO VASQUEZ, defendant-
appellants," upholding the validity of three (3) documents questioned by Moises Jocson, in total
reversal of the decision of the then Court of First Instance of Cavite, Branch I, which declared them
as null and void; and of its resolution, dated September 30, 1980, denying therein appellee's motion
for reconsideration.

Petitioner Moises Jocson and respondent Agustina Jocson-Vasquez are the only surviving offsprings
of the spouses Emilio Jocson and Alejandra Poblete, while respondent Ernesto Vasquez is the
husband of Agustina. Alejandra Poblete predeceased her husband without her intestate estate being
settled. Subsequently, Emilio Jocson also died intestate on April 1, 1972.

As adverted to above, the present controversy concerns the validity of three (3) documents
executed by Emilio Jocson during his lifetime. These documents purportedly conveyed, by sale, to
Agustina Jocson-Vasquez what apparently covers almost all of his properties, including his one-third
(1/3) share in the estate of his wife. Petitioner Moises Jocson assails these documents and prays
that they be declared null and void and the properties subject matter therein be partitioned between
him and Agustina as the only heirs of their deceased parents.

The documents, which were presented as evidence not by Moises Jocson, as the party assailing its
validity, but rather by herein respondents, are the following:

1) "Kasulatan ng Bilihan ng Lupa," marked as Exhibit 3 (pp. 12-13, Records) for the
defendant in the court a quo, dated July 27, 1968. By this document Emilio Jocson
sold to Agustina Jocson-Vasquez six (6) parcels of land, all located at Naic, Cavite,
for the sum of ten thousand P10,000.00 pesos. On the same document Emilio Jocson
acknowledged receipt of the purchase price, thus:

Na ngayon, alang-alang sa halagang SAMPUNG LIBONG PISO (P10,000) salaping

Pilipino na aking tinanggap ng buong kasiyahan loob at ang pagkakatanggap ay
aking hayagang inaamin sa pamamagitan ng kasulatang ito, sa aking anak na si
Agustina Jocson,  na may sapat na gulang, mamamayang Pilipino, asawa ni Ernesto
Vasquez, at naninirahan sa Poblacion, Naic, Cavite, ay aking ipinagbile ng lubusan at
kagyat at walang ano mang pasubali ang nabanggit na anim na pirasong lupa na
nasa unang dahon ng dokumentong ito, sa nabanggit na Agustina Jocson, at sa
kaniyang tagapagmana o makakahalili at gayon din nais kong banggitin na kahit na
 may kamurahan ang ginawa kong pagbibile ay dahilan sa ang nakabile ay aking
anak na sa akin at mapaglingkod, madamayin at ma-alalahanin, na tulad din ng isa
ko pang anak na lalaki.  Ang kuartang tinanggap ko na P10,000.00, ay gagamitin ko
sa aking katandaan at mga huling araw at sa aking mga ibang mahahalagang
pangangailangan. [Emphasis supplied]

Na nais ko ring banggitin na ang ginawa kong ito ay hindi labag sa ano mang batas
o kautusan, sapagkat ang aking pinagbile ay akin at nasa aking pangalan. Ang mga
lupang nasa pangalan ng aking nasirang asawa ay hindi ko ginagalaw ni
pinakikialaman at iyon ay dapat na hatiin ng dalawa kong anak alinsunod sa umiiral
na batas (p. 13, Records.)

2) "Kasulatan ng Ganap na Bilihan,"dated July 27,1968, marked as Exhibit 4 (p. 14,

Records). On the face of this document, Emilio Jocson purportedly sold to Agustina
Jocson-Vasquez, for the sum of FIVE THOUSAND (P5,000.00) PESOS, two rice mills
and a camarin (camalig) located at Naic, Cavite. As in the first document, Moises
Jocson acknowledged receipt of the purchase price:

'Na alang-alang sa halagang LIMANG LIBONG PISO (P5,000.00) salaping Pilipino na

aking tinanggap ng buong kasiyahan loob sa aking anak na Agustina Jocson .... Na
ang halagang ibinayad sa akin ay may kamurahan ng kaunti ngunit dahil sa malaking
pagtingin ko sa kaniya ... kaya at pinagbile ko sa kaniya ang mga nabanggit na
pagaari kahit na hindi malaking halaga ... (p. 14, Records).

3) Lastly, the "Deed of Extrajudicial Partition and Adjudication with Sale, "dated
March 9, 1969, marked as Exhibit 2 (p. 10-11, Records), whereby Emilio Jocson and
Agustina Jocson-Vasquez, without the participation and intervention of Moises
Jocson, extrajudicially partitioned the unsettled estate of Alejandra Poblete, dividing
the same into three parts, one-third (1/3) each for the heirs of Alejandra Poblete,
namely: Emilio Jocson, Agustina Jocson-Vasquez and Moises Jocson. By the same
instrument, Emilio sold his one- third (1/3) share to Agustin for the sum of EIGHT
THOUSAND (P8,000.00) PESOS. As in the preceding documents, Emilio Jocson
acknowledged receipt of the purchase price:

Now for and in consideration of the sum of only eight thousand (P8,000.00) pesos,
which I, the herein Emilio Jocson had received from my daughter Agustina Jocson,
do hereby sell, cede, convey and transfer, unto the said Agustina Jocson, her heirs
and assigns, administrators and successors in interests, in the nature of absolute and
irrevocable sale, all my rights, interest, shares and participation, which is equivalent
to one third (1/3) share in the properties herein mentioned and described the one
third being adjudicated unto Agustina Jocson and the other third (1/3) portion being
the share of Moises Jocson. (p. 11, Records).

These documents were executed before a notary public. Exhibits 3 and 4 were registered with the
Office of the Register of Deeds of Cavite on July 29, 1968 and the transfer certificates of title
covering the properties therein in the name of Emilio Jocson, married to Alejandra Poblete," were
cancelled and new certificates of title were issued in the name of Agustina Jocson-Vasquez. Exhibit 2
was not registered with the Office of the Register of Deeds.

Herein petitioner filed his original complaint (Record on Appeal, p. 27, Rollo) on June 20,1973 with
the then Court of First Instance of Naic, Cavite (docketed as Civil Case No. TM- 531), and which was
twice amended. In his Second Amended Complaint (pp. 47-58, Record on Appeal), herein petitioner
assailed the above documents, as aforementioned, for being null and void.

It is necessary to partly quote the allegation of petitioner in his complaint for the reason that the
nature of his causes of action is at issue, thus:

8. [With regard the first document, that] the defendants, through fraud, deceit,
undue pressure and influence and other illegal machinations, were able to induce,
led, and procured their father ... to sign [the] contract of sale ..., for the simulated
price  of P10,000.00, which is a consideration that is shocking to the conscience of
 ordinary man and despite the fact that said defendants have no work or livelihood of
their own ...; that the sale is null and void, also, because it is fictitious, simulated
and fabricated contract x x x (pp. 52-53, Record on Appeal). [Emphasis supplied]

xxx xxx xxx

12. [With regards the second and third document, that they] are null and void
because the consent of the father, Emilio Jocson, was obtained with fraud, deceit,
undue pressure, misrepresentation and unlawful machinations and trickeries
committed by the defendant on him; and that the said contracts are simulated,
fabricated and fictitious,  having been made deliberately to exclude the plaintiff from
participating and with the dishonest and selfish motive on the part of the defendants
to defraud him of his legitimate share on said properties [subject matter
thereof]; and that without any other business or employment or any other source of
income, defendants who were just employed in the management and administration
of the business of their parents, would not have the sufficient and ample means to
purchase the said properties  except by getting the earnings of the business or by
simulated consideration ... (pp. 54-55, Record on Appeal). [Emphasis supplied]

Petitioner explained that there could be no real sale between a father and daughter who are living
under the same roof, especially so when the father has no need of money as the properties
supposedly sold were all income-producing. Further, petitioner claimed that the properties
mentioned in Exhibits 3 and 4 are the unliquidated conjugal properties of Emilio Jocson and
Alejandra Poblete which the former, therefore, cannot validly sell (pp. 53, 57, Record on Appeal). As
far as Exhibit 2 is concerned, petitioner questions not the extrajudicial partition but only the sale by
his father to Agustina of the former's 1/3 share (p. 13, Rollo).

The trial court sustained the foregoing contentions of petitioner (pp. 59-81, Record on Appeal). It
declared that the considerations mentioned in the documents were merely simulated and fictitious
because: 1) there was no showing that Agustina Jocson-Vasquez paid for the properties; 2) the
prices were grossly inadequate which is tantamount to lack of consideration at all; and 3) the
improbability of the sale between Emilio Jocson and Agustina Jocson-Vasquez, taking into
consideration the circumstances obtaining between the parties; and that the real intention of the
parties were donations designed to exclude Moises Jocson from participating in the estate of his
parents. It further declared the properties mentioned in Exhibits 3 and 4 as conjugal properties of
Emilio Jocson and Alejandra Poblete, because they were registered in the name of "Emilio Jocson,
married to Alejandra Poblete" and ordered that the properties subject matter of all the documents
be registered in the name of herein petitioners and private respondents.

On appeal, the Court of Appeals in CA-G.R. No. 63474-R rendered a decision (pp. 29-42, Rollo) and
reversed that of the trial court's and ruled that:

1. That insofar as Exhibits 3 and 4 are concerned the appellee's complaint for
annulment, which is indisputably based on fraud, and undue influence, is now barred
by prescription, pursuant to the settled rule that an action for annulment of a
contract based on fraud must be filed within four (4) years, from the discovery of the
fraud, ... which in legal contemplation is deemed to be the date of the registration of
said document with the Register of Deeds ... and the records admittedly show that
both Exhibits 3 and 4, were all registered on July 29, 1968, while on the other hand,
the appellee's complaint was filed on June 20, 1973, clearly beyond the aforesaid
four-year prescriptive period provided by law;

2. That the aforesaid contracts, Exhibits 2, 3, and 4, are decisively not simulated or
fictitious contracts, since Emilio Jocson actually and really intended them to be
effective and binding against him, as to divest him of the full dominion and
ownership over the properties subject of said assailed contracts, as in fact all his
titles over the same were all cancelled and new ones issued to appellant Agustina
Jocson-Vasquez ...;

3. That in regard to Exhibit 2, the same is valid and subsisting, and the partition with
sale therein made by and between Emilio Jocson and Agustina Jocson-Vasquez,
 affecting the 2/3 portion of the subject properties described therein have all been
made in accordance with Article 996 of the New Civil Code on intestate succession,
and the appellee's (herein petitioner) remaining 1/3 has not been prejudiced (pp. 41-
42, Rollo).

In this petition for review, Moises Jocson raised the following assignments of errors:

1. HAS THE RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT THE

SUIT FOR THE ANNULMENT OF CONTRACTS FILED BY PETITIONERS WITH THE
TRIAL COURT IS "BASED ON FRAUD" AND NOT ON ITS INEXISTENCE AND NULLITY
BECAUSE OF IT'S BEING SIMULATED OR FICTITIOUS OR WHOSE CAUSE IS
CONTRARY TO LAW, MORALS AND GOOD CUSTOMS?

II. HAS THE RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT THE
COMPLAINT FILED BY PETITIONER IN THE TRIAL COURT IS BARRED BY
PRESCRIPTION?

III. HAS THE RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING AS

INEXISTENT AND NULL AND VOID THE CONTRACTS IN QUESTION AND IN
REVERSING THE DECLARING DECISION OF THE TRIAL COURT? (p. 2, Rollo)

I.

The first and second assignments of errors are related and shall be jointly discussed.

According to the Court of Appeals, herein petitioner's causes of action were based on fraud. Under
Article 1330 of the Civil Code, a contract tainted by vitiated consent, as when consent was obtained
through fraud, is voidable; and the action for annulment must be brought within four years from the
time of the discovery of the fraud (Article 1391, par. 4, Civil Code), otherwise the contract may no
longer be contested. Under present jurisprudence, discovery of fraud is deemed to have taken place
at the time the convenant was registered with the Register of Deeds (Gerona vs. De Guzman, No. L-
19060, May 29,1964, 11 SCRA 153). Since Exhibits 3 and 4 were registered on July 29, 1968 but
Moises Jocson filed his complaint only on June 20, 1973, the Court of Appeals ruled that insofar as
these documents were concerned, petitioner's "annulment suit" had prescribed.

If fraud were the only ground relied upon by Moises Jocson in assailing the questioned documents,
We would have sustained the above pronouncement. But it is not so. As pointed out by petitioner,
he further assailed the deeds of conveyance on the ground that they were without consideration
since the amounts appearing thereon as paid were in fact merely simulated.

According to Article 1352 of the Civil Code, contracts without cause produce no effect whatsoever. A
contract of sale with a simulated price is void (Article 1471; also Article 1409 [3]]), and an action for
the declaration of its nullity does not prescribe (Article 1410, Civil Code; See also, Castillo v. Galvan,
No. L-27841, October 20, l978, 85 SCRA 526). Moises Jocsons saction, therefore, being for the
judicial declaration of nullity of Exhibits 3 and 4 on the ground of simulated price, is imprescriptible.

II.

For petitioner, however, the above discussion may be purely academic. The burden of proof in
showing that contracts lack consideration rests on he who alleged it. The degree of proof becomes
more stringent where the documents themselves show that the vendor acknowledged receipt of the
price, and more so where the documents were notarized, as in the case at bar. Upon consideration
of the records of this case, We are of the opinion that petitioner has not sufficiently proven that the
questioned documents are without consideration.

Firstly, Moises Jocson's claim that Agustina Jocson-Vasquez had no other source of income other
than what she derives from helping in the management of the family business (ricefields and
ricemills), and which was insufficient to pay for the purchase price, was contradicted by his own
witness, Isaac Bagnas, who testified that Agustina and her husband were engaged in the buy and
sell of palay and rice (p. 10, t.s.n., January 14, 1975). Amazingly, petitioner himself and his wife
testified that they did not know whether or not Agustina was involved in some other business (p. 40,
t.s.n., July 30, 1974; p. 36, t.s.n., May 24, 1974).

On the other hand, Agustina testified that she was engaged in the business of buying and selling
palay and rice even before her marriage to Ernesto Vasquez sometime in 1948 and continued doing
so thereafter (p. 4, t.s.n., March 15, 1976). Considering the foregoing and the presumption that a
contract is with a consideration (Article 1354, Civil Code), it is clear that petitioner miserably failed to
prove his allegation.

Secondly, neither may the contract be declared void because of alleged inadequacy of price. To
begin with, there was no showing that the prices were grossly inadequate. In fact, the total
purchase price paid by Agustina Jocson-Vasquez is above the total assessed value of the properties
alleged by petitioner. In his Second Amended Complaint, petitioner alleged that the total assessed
value of the properties mentioned in Exhibit 3 was P8,920; Exhibit 4, P3,500; and Exhibit 2, P
24,840, while the purchase price paid was P10,000, P5,000, and P8,000, respectively, the latter for
the 1/3 share of Emilio Jocson from the paraphernal properties of his wife, Alejandra Poblete. And
any difference between the market value and the purchase price, which as admitted by Emilio
Jocson was only slight, may not be so shocking considering that the sales were effected by a father
to her daughter in which case filial love must be taken into consideration (Alsua-Betts vs. Court of
Appeals, No. L-46430-31, April 30, 1979, 92 SCRA 332).

Further, gross inadequacy of price alone does not affect a contract of sale, except that it may
indicate a defect in the consent, or that the parties really intended a donation or some other act or
contract (Article 1470, Civil Code) and there is nothing in the records at all to indicate any defect in
Emilio Jocson's consent.

Thirdly, any discussion as to the improbability of a sale between a father and his daughter is purely
speculative which has no relevance to a contract where all the essential requisites of consent, object
and cause are clearly present.

There is another ground relied upon by petitioner in assailing Exhibits 3 and 4, that the properties
subject matter therein are conjugal properties of Emilio Jocson and Alejandra Poblete. It is the
position of petitioner that since the properties sold to Agustina Jocson-Vasquez under Exhibit 3 were
registered in the name of "Emilio Jocson, married to Alejandra Poblete," the certificates of title he
presented as evidence (Exhibits "E', to "J', pp. 4-9, Records) were enough proof to show that the
properties covered therein were acquired during the marriage of their parents, and, therefore, under
Article 160 of the Civil Code, presumed to be conjugal properties.

Article 160 of the Civil Code provides that:

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.

In Cobb-Perez vs. Hon. Gregorio Lantin, No. L-22320, May 22, 1968, 23 SCRA 637, 644, We held
that:

Anent their claim that the shares in question are conjugal assets, the spouses Perez
adduced not a modicum of evidence, although they repeatedly invoked article 160 of
the New Civil Code which provides that ... . As interpreted by this Court, the party
who invokes this presumption must first prove that the property in controversy was
acquired during the marriage. In other words, proof of acquisition during the
coverture is a condition sine qua  non for the operation of the presumption in favor of
conjugal ownership. Thus in Camia de Reyes vs. Reyes de Ilano [62 Phil. 629, 639],
it was held that "according to law and jurisprudence, it is sufficient to prove that the
Property was acquired during the marriage in order that the same may be deemed
conjugal property." In the recent case of Maramba vs. Lozano, et. al. [L-21533, June
29, 1967, 20 SCRA 474], this Court, thru Mr. Justice Makalintal, reiterated that "the
presumption under Article 160 of the Civil Code refers to property acquired during
the marriage," and then concluded that since "there is no showing as to when the
property in question was acquired...the fact that the title is in the wife's name alone
is determinative." Similarly, in the case at bar, since there is no evidence as to when
 the shares of stock were acquired, the fact that they are registered in the name of
the husband alone is an indication that the shares belong exclusively to said spouse.'

This pronouncement was reiterated in the case of Ponce de Leon vs. Rehabilitation Finance
Corporation, No. L-24571, December 18, 1970, 36 SCRA 289, and later in Torela vs. Torela, No.
1,27843, October 11, 1979, 93 SCRA 391.

It is thus clear that before Moises Jocson may validly invoke the presumption under Article 160 he
must first present proof that the disputed properties were acquired during the marriage of Emilio
Jocson and Alejandra Poblete. The certificates of title, however, upon which petitioner rests his claim
is insufficient. The fact that the properties were registered in the name of "Emilio Jocson, married to
Alejandra Poblete" is no proof that the properties were acquired during the spouses' coverture.
Acquisition of title and registration thereof are two different acts. It is well settled that registration
does not confer title but merely confirms one already existing (See Torela vs. Torela, supra). It may
be that the properties under dispute were acquired by Emilio Jocson when he was still a bachelor
but were registered only after his marriage to Alejandra Poblete, which explains why he was
described in the certificates of title as married to the latter.

Contrary to petitioner's position, the certificates of title show, on their face, that the properties were
exclusively Emilio Jocson's, the registered owner. This is so because the words "married to'
preceding "Alejandra Poblete' are merely descriptive of the civil status of Emilio Jocson Litam v.
Rivera, 100 Phil. 354; Stuart v. Yatco, No. L-16467, April 27, 1962, 4 SCRA 1143; Magallon v.
Montejo, G.R. No. L-73733, December 16, 1986, 146 SCRA 282). In other words, the import from
the certificates of title is that Emilio Jocson is the owner of the properties, the same having been
registered in his name alone, and that he is married to Alejandra Poblete.

We are not unmindful that in numerous cases We consistently held that registration of the property
in the name of only one spouse does not negate the possibility of it being conjugal (See Bucoy vs.
Paulino, No. L-25775, April 26, 1968, 23 SCRA 248). But this ruling is not inconsistent with the
above pronouncement for in those cases there was proof that the properties, though registered in
the name of only one spouse, were indeed conjugal properties, or that they have been acquired
during the marriage of the spouses, and therefore, presumed conjugal, without the adverse party
having presented proof to rebut the presumption (See Mendoza vs- Reyes, No. L-31618, August 17,
1983, 124 SCRA 154).

In the instant case, had petitioner, Moises Jocson, presented sufficient proof to show that the
disputed properties were acquired during his parents' coverture. We would have ruled that the
properties, though registered in the name of Emilio Jocson alone, are conjugal properties in view of
the presumption under Article 160. There being no such proof, the condition sine qua  non for the
application of the presumption does not exist. Necessarily, We rule that the properties under Exhibit
3 are the exclusive properties of Emilio Jocson.

There being no showing also that the camarin and the two ricemills, which are the subject of Exhibit
4, were conjugal properties of the spouses Emilio Jocson and Alejandra Poblete, they should be
considered, likewise, as the exclusive properties of Emilio Jocson, the burden of proof being on
petitioner.

ACCORDINGLY, the petition is DISMISSED and the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

G.R. No. L-41947 January 16, 1936

In re Will of the deceased Silvestra Baron.

VIVENCIO CUYUGAN, Petitioner-Appellant, vs. FAUSTINA BARON and GUILLERMO BARON,
oppositors-appellees.

Pedro Abad Santos, Quirino Abad Santos, Francisco M. Ramos, and Aurelio Pineda for appellant.
Arturo Joven for appellee Guillermo Baron.
Vicente J. Francisco and Jesus E. Blanco for appellee Faustina Baron.
BUTTE, J.: chanrobles virtual law library

This is an appeal from a judgment of the Court of First Instance of Pampanga denying all the
petition of Vivencio Cuyugan for the probate of the will of Silvestra
Baron.chanroblesvirtualawlibrary chanrobles virtual law library

The petition which was filed on February 1, 1933, recites among other things that Silvestra
Baron died on January 30, 1933. The death certificate recites that she was eighty-six years of
age and died of heart failure. The petition further recites that she left an estate exceeding in
value the sum of P80,000 which she disposed of by will dated December 17, 1932, that she
died single without forced heirs.chanroblesvirtualawlibrary chanrobles virtual law library

The will appointed Vivencio Cuyugan, her nephew, as executor and contains the following
paragraphs which dispose of her estate:

Que despues de pagados todos los gastos quese han de ocasioner desde que me caiga enferma
hasta el entiero de mi cadaver, los bienes y propiedades que he de dejar se repartiran
buenamente y en partes iguales mis hermanos Ilamados Guillermo Baron, con exception de
todo el dinero en metalico y mi casa de materiales fuertes construida en el barrio del Pilar, San
Fernando, Pampanga que actualmente habita mi hermano Guillermo Baron, porque estos los
doy de una manera absoluta como herencia de mi sobrino Vivencio
Cuyugan.chanroblesvirtualawlibrary chanrobles virtual law library

Que a la muerte de mis hermanos Guillermo y Faustina Baron, todos los terrenos que en virtud
de este test tamento les dejo en herencia, los doy herencia a mi so brino VIVENCIO CUYUGAN,
por lo que, encargo y prohibo a mis citados hermanos Guillermo y Faustina Baron, que graven o
pongan cualquiera clase de obligacion sobre los bienes que les dejo en herencia.

The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron" (t.s.n. pp.
170, 171). Both copies are written in the Pampanga dialect and consist of one sheet and are
witnessed in due form by Vicente David, Valeriano Silva and Zacarias Nuguid (known to the
testator).chanroblesvirtualawlibrary chanrobles virtual law library

The petition for probate recites:

9. That on the date of the execution of said will, that is to say, on December 17, 1932, the said
testatrix was about 80 years old, more or less, and was found and disposing mind, and not
acting under duress, menace, fraud, or undue influence, and was in every respect competent to
dispose of her estate by will.

The amended oppositions of Guillermo Baron, brother of the deceased, and Faustina Baron,
sister of the deceased, allege in substance first, that at the time of the execution of the alleged
will, Silvestra Baron was mentally and physically incapacitated for the execution of a will; and,
second, that her signature and alleged consent to the said will was obtained and the attorney
who prepared the document and the witnesses who affixed their signatures
thereto.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the issues thus drawn by the pleadings of the judge of the Court of First Instance, after
and extended trial and a full consideration of the evidence, came to the following conclusion:

Opinamos que influyeron indebidamente e impropia mente en la voluntad ya debilitada de

do�a Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y
Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron impedida
de presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia Municipal, Zacarias
Nuguid; la oposicion de Regino Cuyugan a que ella firmase el documento preparado por el
abogado Narciso declarando que no habia otorgado testamento el dia anterior a su translado
forzoso a San Fernando para que no se hisciese firmar documento analogo y la presencia del
cabo Morales y del algunos otros soldados, no solamente cuando se otorgo el testamento, sino
cuando ella fue transladada de casa contra su voluntad y cuando se le hizo firmar el Exhibit 10,
y por lo tanto, que ella no gozo de una completa libertad para disponer de sus bienes en
testamento, o con pleno conocimiento del alcance de su contendido. Solo asi se explica el que
ella haya dejado toda la propiedad de sus bienes a sus sobrinos, con quienes habia estado en
pleito, con pretericion de sus hermanos, especialmente de la opositora Faustina Baron, con
quien habia conviviendo durante 40 a�os . . . .chanroblesvirtualawlibrary chanrobles virtual law
library

Sentadas las premisas de hecho y de derecho que an teceden, el Juzgado no puede menos de
llegar a la con ser legalizado como el testamento y ultima voluntad de la finada Silvestra Baron.
Cuando existen pruebas suficien tes para concencer al Juzgado de que se ha ejercido in fluencia
indebida en el animo de la testadora y que como resultado de dicha influencia indebida esta ha
otorgado el testamento de la voluntad de la supuesta testadora sino de los que sobre ella
ejercieron la influencia indebida.

An instrument purporting to be a will executed and witnessed in accordance with the formalities
required by the statute is entitled to the presumption of regularity. But the burden of the
evidence passed to the proponent when the oppositors submit credible evidence tending to
show that the supposed testator did not possess testamentary capacity at the time or that the
document was not the free and voluntary expression of the alleged testator or that the will, for
any other reason, is void in law. The finding that the will was executed under due influence or
by the fraud of another presupposes testamentary capacity. In the present case the learned
trial judge refused the probate of the alleged will on the ground that it was executed under the
due influence of other persons and we think the record warrants his findings in this respect.
The trial court also made findings of fact tending to show actual lack of testamentary capacity
of Silvestra Baron and we have preferred to base our conclusion on that finding. The
testamentary capacity of Silvestra Baron at the time she executed the said purported
will.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were
immediately called in. By reason of her advanced age and the gravity of her illness, she was
unable to do anything for herself. Her grandniece, Epifania Sampang, who reached the house
about one hour or so after the old lady's collapse, telephoned a message to Vivencio Cuyugan
at San Fernando, some fourteen kilometers distant, that Silvestra had an attack and was in a
serious condition and requested that a doctor be sent immediately, Doctor Teopaco and a nurse
arrived at about ten o'clock and treated the patient with a plaster on her back and ice packs
over her heart and the doctor gave her a hypodermic injection in the arm. As the doctor and
the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the
house prepared to obtain the will of Silvestra Baron. Neither the doctor nor the nurse were
presented as witnesses by the proponent. Epifania Sampang, admittedly an intelligent young
woman, who was the first to reach Silvestra Baron and remained throughout the morning
attended to her, testified that when she reached the house she found her grandaunt lying in
bed, very pale and unconscious; that she called to her but she did not answer and only
groaned; that her mouth was twisted and her lower lip swollen. She went out to call a doctor
but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando
for a doctor.chanroblesvirtualawlibrary chanrobles virtual law library

The subscribing witnesses stated that it was their belief that Silvestra understood the alleged
will which she signed, but all of them admitted that although they were in her house about two
hours not one of them exchanged a single word of conversation with Silvestra. The subscribing
witness Zacarias Nuguid testified in part as follows:

P. Desde que los tres abogados Abad Santos, Silva y David y usted y Vivencio Cuyugan se
acercaron a la cama de la finada, hasta que tanto ella como usteded firmaron el testamento, ha
pronunciado ella alguna palabra? ha dicho ella algo o no? - R. No
recuerdo.chanroblesvirtualawlibrary chanrobles virtual law library
P. Pero, por lo que usted recuerda, ha dicho ella algo o no ha dicho nada? - R. No
recuerdo.chanroblesvirtualawlibrary chanrobles virtual law library

P. Usted ha dicho algo a ella? - R. Nada.chanroblesvirtualawlibrary chanrobles virtual law library

P. El se�or Quirino Abad Santos le ha dicho algo a ella? - R. Nada. No he

oido.chanroblesvirtualawlibrary chanrobles virtual law library

P. Los otros abogados Silva y David le han dicho algo ? - R. No he

oido.chanroblesvirtualawlibrary chanrobles virtual law library

P. Ella ha dicho algo a cualquiera de osos tres o a los abogados? - R. No he oido que dijera
algo.chanroblesvirtualawlibrary chanrobles virtual law library

P. Si ella hubiese dicho algo a los abogados, asi como los abogados hubieran hablado a ella,
usted hubiera oido porque usted estaba cerca, no es verdad? - R. Si se�or, hubiera podido
oir.chanroblesvirtualawlibrary chanrobles virtual law library

P. Cuando el senor Silva termino de leer el testamento, dijo algo la vieja? - R. No he oido que
dijera algo.

There is no evidence that Silvestra Baron took any active part in the preparation of the alleged
will except that when she was asked if she wished to include her sister Faustina in the will she
said "Yes" in Pampanga. There is no affirmative evidence that she understood the document
when it was read to her. The person who read the will to her testified as follows:

R. Despues de leido el testamento, tuve que entregarlo a do�a Silvestra, y lo miro algun
rato.chanroblesvirtualawlibrary chanrobles virtual law library

P. Y ella, efectivamente, cogio el testamento de manos de usted? - R. Lo entregue a sus

manos.chanroblesvirtualawlibrary chanrobles virtual law library

P. Y ella lo cogio con sus manos? - R. Si se�or.chanroblesvirtualawlibrary chanrobles virtual

law library

P. Y lo tuvo en sus manos leyendo, mirando? - R. Mirandolo asi.chanroblesvirtualawlibrary

chanrobles virtual law library

P. Pero, no lo leia? - R. Lo estuvo mirando por mucho tiempo asi.

Standing at her bedside was the attorney with three witnesses and the chief beneficiary,
Vivencio Cuyugan, and yet so far as this record shows, not a word was exchanged between any
of them and the suffering old woman. We don't know what drug the doctor administered but it
is clear to us from the evidence that in her dazed physical and mental condition she had no
adequate understanding of what she was doing at that time. She could not even sign her name
to the original will properly or correctly, and when this defect was noted by one of the astute
subscribing witnesses, he suggested that they have her sign another copy (t.s.n. page 109)
which was done.chanroblesvirtualawlibrary chanrobles virtual law library

She never saw the alleged will at any time again prior to her death which occurred forty-four
days later. It was immediately taken away by an attorney who kept it in his possession alleging
that she had instructed him to keep it secret. There is, however, credible evidence in the record
that before her death she had denied to several persons that she made any
will.chanroblesvirtualawlibrary chanrobles virtual law library

This belief on her part that she had not made any will explains her failure to do any act of
revocation in the forty-four days during which she lingered in this life. The doctrine that where
the testator has had an opportunity to revoke his will subsequent to the operation of an alleged
undue influence upon him but makes no change in it, the courts will consider this fact as
weighing heavily against the testimony of undue influence, has no application to cases in which
there has been an initial lack of testamentary capacity. It has no application, moreover, where
from the day of execution until the death of the testator his mental condition is such that he
cannot judge the propriety of revoking the will. Nor obviously does it apply to a case where the
alleged testator harbors the belief that he had not executed the will in
question.chanroblesvirtualawlibrary chanrobles virtual law library

In view of the premises, the judgment appealed from is affirmed with costs against the
appellant.

Hull and Imperial, JJ., concur.

Separate Opinions

MALCOLM, J., concurring:chanrobles virtual law library

The main issue in this case, as I see it, is whether or not Silvestra Baron, a woman of advanced
years and in a critical state of health, possesses testamentary capacity to make a will. This was
an issue of fact, and resolving it the trial judge reached the conclusion that the testatrix was not
of disposing mind. My review of the evidence does not permit me to say that in thus deciding
the trial judge was wrong. As was expected, in a case of this character, the oral testimony was
conflicting, but in resolving the credibility of the witnesses, a judge as experienced as Judge
Hermogenes Reyes was in a much better position to do so than we are. However, I may state
that I have been considerably influenced by the testimony of the parish priest, certainly a
disinterested party, who stated on the witness stand that in response to his question if she had
made a will, Silvestra Baron answered: "There is no will, Father." But from the premise of lack
of testamentary capacity, it does not necessarily follow that anything of an unprofessional
nature should be imputed to the lawyer who prepared the will and the other lawyers who acted
as attesting witnesses. The first named is the justice of the peace of San Fernando, Pampanga,
and has an excellent reputation, which is not lessened in the least by his acts in this case, and
the last named are reputable members of the bar.chanroblesvirtualawlibrary chanrobles virtual
law library

For these reasons and to this extent, I concur.

Vickers, and Recto, J., concur.

VILLA-REAL, J., dissenting:chanrobles virtual law library

The lower court refused to probate the will of Silvestra Baron on the ground that when she
executed it she was under the undue influence of other persons; but the majority of this court,
while admitting the existence of such undue influence, prefers to base its refusal on the ground
that she lacked testamentary capacity at the time of the execution of said
will.chanroblesvirtualawlibrary chanrobles virtual law library

The facts constituting the undue influence in the opinion of the lower court are summarized in
its decision as follows:

Opinamos que influyeron indebitamente e impropiamente en al voluntad ya debilitada de do�a

Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y Regino
Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron impedida de
presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia Municipal, Zacarias
Nuguid; la oposicion de Regino Cuyugan a que ella firmase el documento preparado por el
abogado Narciso declarando que no habia otorgado testamento el dia anterior a su translado
forzoso a San Fernando para que no se hiciese firmar documento analogo y la presencia del
cabo Morales y de algunos otros soldados, no solamente cuando se otorgo el testamento, sino
cuando se le hizo firmar el Exhibit 10, y, por lo tanto, que ella no gozo de una completa libertad
para disponer de sus bienes en testamento, o con pleno conocimiento del alcance de su
contenido. Solo asi se explica el que ella haya dejado toda la propiedad de sus bienes a sus
sobrinos, con quienes habia estado en pleito, con pretericion de sus hermanos, especialmente
de la opositora Faustina Baron, con quien habia estado conviviendo durante 40 a�os . . ..

And the facts constituting lack of testamentary capacity are condensed in the opinion of the
majority as follows:

The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were
immediately called in. By reason of her advanced age and the gravity of her illness, she was
unable to do anything for herself. Her grandniece, Epifania Sampang, who reached the house
about an hour or so after the old lady's collapse, telephoned a message to Vivencio Cuyugan at
San Fernando, some fourteen kilometers distant, that Silvestra had had an attack and was in a
serious condition and requested that a doctor be sent immediately. Doctor Teopaco and a nurse
arrived at about ten o'clock and treated the patient with a plaster on her back and ice packs
over her heart and the doctor gave her a hypodermic injection in the arm. As the doctor and
the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the
house prepared to obtain the will of Silvestra Baron. Neither the doctor nor the nurse were
presented as witnesses by the proponent. Epifania Sampang, admittedly an intelligent young
woman, who was the first to reach Silvestra Baron and remained throughout the morning and
attended to her, testified that when she reached the house she found her grandaunt lying in
the bed, very pale and unconscious; that she called to her but she did not answer and only
groaned; that her mouth was twisted and her lower lip swollen. She went out to call a doctor
but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando
for a doctor.

Examining now the facts which according to the findings of the lower court constituted undue
influence, we have in the first place the presence of the testatrix nephews Regino Cuyugan and
Vivencio Cuyugan. There was nothing either in the presence of Vivencio Cuyugan or of that of
Regino Cuyugan which could have compelled Silvestra Baron to make Vivencio Cuyugan her
most favored beneficiary in her will. There is certainly nothing ill in nephews being present at
the making of a will. The evidence shows that these two Cuyugans just stood by while the will
was being read to the testatrix and when it was presented to her for her
signature.chanroblesvirtualawlibrary chanrobles virtual law library

The absence of Faustina Baron, - the sister of Silvestra Baron, in whose company the latter was
living, - who, according to the witnesses for the opponents, but denied by the witnesses for the
proponent, while the will was being made, was prevented to come into the house by some
Constabulary soldiers and the chief of police of San Fernando, Pampanga, Zacarias Nuguid, is
another fact mentioned by the lower court as constituting undue influence. Even granting that
Faustina Baron was prevented to come to the house while Silvestra Baron was making her will,
I fail to see how such act on the part of the Constabulary soldiers could have unduly influenced
the testatrix in the making of her will.chanroblesvirtualawlibrary chanrobles virtual law library

The presence of some Constabulary soldiers outside the house and in the kitchen is also one of
the reasons which led the lower court to conclude that undue influence was used in making
Silvestra Baron sign her will. Silvestra Baron was not an ignorant old lady. She was a landed
proprietress, who according to the custom prevailing in the Philippine Islands, managed her
won property, and in o doing she had to deal with many farm laborers in such a way as to
make them respect her. The presence of Constabulary soldiers in towns and barrios is not a
rare occurrence, and country people are accustomed to seeing them around whether on patrol
or quarantine duty. There is, therefore, nothing in the mere presence of the Constabulary
soldiers in the house of Silvestra Baron at the time of making her will which could have
influenced her. Besides, the testatrix must have known the presence of such soldiers before she
collapsed, because they had been there investigating the assault and robbery committed
against her a few days before. There is no evidence that said soldiers were brought to the
house for the purpose of guarding the making of the will.chanroblesvirtualawlibrary chanrobles
virtual law library
The fact that the chief of police of San Fernando, Zacarias Nuguid, was brought by Attorney
Quirino Abad Santos, whom the old lady had requested to prepare her will, had no more
significance than the bringing of the other attorneys to witnesses to the will. There is certainly
no evil in making a chief of police a witness to a will, nor is there any law disqualifying him to
be such witness.chanroblesvirtualawlibrary chanrobles virtual law library

The alleged attitude of Regino Cuyugan in trying to prevent her aunt Silvestra Baron on
December 18, 1932, the day following the making of her will, to sign a document prepared by
Attorney Jose A. Narciso revoking her said will, even if it were true, could in no way have
influenced her in the making of said will which took place the day
previous.chanroblesvirtualawlibrary chanrobles virtual law library

The lower court also found that the will of Silvestra Baron was weakened by old age. In this
connection I prefer to reproduce here what is said in 68 Corpus Juris, 440-442:

Old age. - A person possessing the requisites of testamentary capacity is not incapacitated from
making a will by old age, although his advanced years to be accompanied by infirmity of mind
and body. Nor is he incapacitated by failing a memory, vacillating judgment, childishness,
slovenliness in dress, eccentricities or peculiarities in habit or speech, and even delusions or
hallucinations if they do not affect the execution of the will, and he is not limited to
conventional methods of disposition. The will is not valid where an aged person is so enfeebled
mentally as not to understand what he is doing.

If undue influence had been used to compel Silvestra Baron to make the will on the 17th of
December, 1932, she could have changed her said will after all the circumstances which
according to the court below constituted said undue influence had disappeared. After the
making of her will Silvestra Baron was left alone in her house in the company of her nephew
Regino Cuyugan, her grandniece Epifania Sampang and her sister Faustina Baron. Upon gaining
access to the house and learning that her sister Silvestra Baron had signed some papers,
Faustina Baron started immediately to look for Attorney Jose A. Narciso, and with him went to
the house of Attorney Valeriano Silva who upon being questioned informed the latter that the
old lady had signed a will. Thereupon efforts were made to have the will revoked, and to this
effect Attorney Jose A. Narciso prepared a document which the old lady refused to sign as we
have already stated. On the 20th of December, 1932, the old lady was taken by her brother
Guillermo Baron, one of the opponents, to her own house in San Fernando, Pampanga,
occupied by said Guillermo, and there she stayed for forty days before her death. During that
time she signed on two different occasions two documents, one ratifying the making of her will
and the other appointing her nephew Vivencio Cuyugan her attorney in fact. An old lady who
after making her will remains in the house of her sister, free from any outside influence, refuses
to sign a document purporting to be a revocation of her will, lives for forty days in her own
house in San Fernando, Pampanga, in the company of her brother, and there signs two
important documents, cannot certainly be said to have been unduly influenced when the made
her will.chanroblesvirtualawlibrary chanrobles virtual law library

In Brownlie vs. Brownlie (93 A.L.R., 1048), the Supreme Court of Illinois said the following:

. . . The undue influence which will invalidate a will must be directly connected with the
execution of the instrument, be operating when the will was made, and thereby prevent the
testator from exercising his own wish and will in the disposition of his estate. (Flanigon vs.
Smith, 337 Ill., 572; 169 N.E., 767; Chaney vs. Baker, 304 Ill., 362; 136, N.E., 804; Goff vs.
Gerhart, 316 Ill., 513; 147 N.E., 419; McGrady vs. McGrady, 298 Ill., 129; 131 N.E., 251.) The
fact that the beneficiaries of a will are those by whom the testator was surrounded and with
whom he stood in confidential relationship at the time of executing his will is no ground for
inferring undue influence. (Michael vs. Marshall, 201 Ill., 70; 66 N.E., 273; Rutherford vs.
Morris, 77 Ill., 397.) The influence must be directed towards procuring the will in favor of
certain parties and must be such as to destroy the testator's freedom of will and purpose. (Pond
vs. Hollett, 310 Ill., 31; 141 N.E., 403; Gregory vs. Richey, 307 Ill., 219; 138 N.E., 669;
Blackhurst vs. James, 304 Ill., 219; 136 N. E., 754, Snell vs. Weldon, 239 Ill., 279; 87 N.E.,
1022.) Proof of undue influence must be consistent with the exercise of undue influence and
also be inconsistent with its absence. (Cunningham vs. Dorwart, supra; Compher vs. Browning,
219 Ill., 429; 76 N.E., 678; 109 Am. St. Rep., 346.)

In the case of Torres and Lopez de Bueno vs. Lopez (48 Phil., 772), this court in an opinion
written by Justice Malcolm, defines undue influence as follows:

Undue influence as used in connection with the law of wills, may be defined as that which
compels the testator to do that which is against the will from fear, the desire of peace, or from
other feeling which he is unable to resist.

In Applehans vs. Jurgenson (67 A.L.R., 857), the Supreme Court of Illinois said:

The undue influence which will avoid a will must be directly connected with the execution of the
instrument and operate at the time it is made. The influence must be specially directed toward
procuring the will in favor of a particular party or parties, and it must be such as to destroy the
freedom of the testator's will and render the instrument obviously more the offspring of the will
of another or others that of his own. (Ughetti vs. Ughetti, 334 Ill., 398; 166 N.E., 90; Ray vs.
Koenigsmarck, 329 Ill., 588; 161 N.E., 124; Farmer vs. Davis, 289 Ill., 392; 124 N.E., 640; Hurd
vs. Reed, 260 Ill., 154; 102 N.E., 1048; Larabee vs. Larabee, 240 Ill., 576; 88 N.E., 1037; Snell
vs. Weldon, 239 Ill., 279; 87 N.E., N.E., 1022; Wickes vs. Walden, 228 Ill., 56; 81 N.E., 798;
Woodman vs. Illinois Trust & Sav. Bank, 211 Ill., 578; 71 N.E., 1099; Roe vs. Taylor, 45 Ill.,
485.) The evidence failed to establish these requirements. The law does not require that a
testator, in making disposition of his property, shall be humane or even just. If he possesses
the requisite mental capacity, he has the right to make an unequal distribution of his property
among his heirs or to give it entirely to strangers. (McGrady vs. McGrady, 298 Ill., 129; 131
N.E., 251.)

We have seen that none of the facts which the lower court found to constitute undue influence
is such as to cause fear, desire of peace, or any other feeling which Silvestra Baron was unable
to resist.chanroblesvirtualawlibrary chanrobles virtual law library

As to the effect of an opportunity of revocation upon an alleged undue influence, we read in 28

R.C.L., 151, the following rule:

106. Opportunity of revocation. - Where the testator has had an opportunity to revoke his will
subsequent to the operation of an alleged undue influence upon him, but makes no change in
it, the court as a general rule considers the effect of the testimony of the undue influence as
destroyed.

From the foregoing definition of undue influence, and the existence of an opportunity to revoke
without taking advantage of it, I come to the conclusion that when Silvestra Baron signed her
will she was not under any undue influence, and that if she had ever been in such during the
forty days which she survived the making of said will. The fact that not only she had not done
so but that she made a power of attorney in favor of her nephew Vivencio Cuyugan, the chief
beneficiary under her will, and ratified the making of said will, is conclusive proof that no undue
influence had been exerted to compel her to sign her will.chanroblesvirtualawlibrary chanrobles
virtual law library

Another fact which led the trial court to conclude that undue influence was exercised upon
Silvestra Baron is that in her will she left most of her property to her nephews leaving nothing
to her brother and sister Faustina Baron except a life usufruct.chanroblesvirtualawlibrary
chanrobles virtual law library

In the case of Pecson vs. Coronel (45 Phil., 216), this court said the following:

Although family ties in this country are very strongly knit, the exclusion of relatives, who are not
forced heirs, from the inheritance is not an exceptional case. The inhabitants of the Archipelago
do not appear to be averse to the freedom to make a will enshrined by article 783 of the Civil
Code, which has been in force in the Philippines since the year 1889. But even if the
appointment of a beneficiary do not seem to be the most usual and ordinary because the
beneficiary is not a relative of the testatrix who has relatives by blood, this alone will not render
the appointment void per se.

In 68 Corpus Juris, 452, we read the following:

The fact that a will may be unnatural, unfair, or unjust creates of itself no presumption that the
testator was incompetent at the time of its execution. No presumption of mental incapacity
arises from the fact that the will makes an unequal distribution of property among the next of
kin, or that it gives property to persons other than the natural objects of the testator's bounty.
Any departure form the usual course in which a person prompted by ordinary instincts and
natural impulses would have his property go is presumed to have been made by the testator
because of reasons rationally conceived which were satisfactory to him, and on the probate of a
will the fact the will is unnatural does not shift the burden to the proponent. According to some
decisions, however, where a will is an unnatural one it is the duty of the proponent on the
probate of the will to give some reasonable explanation of its unnatural character.

In the present case there is evidence to the effect that Silvestra Baron trusted her nephews,
specially Vivencio Cuyugan, more than her brother Guillermo Baron and her sister Faustina
Baron. Faustina Baron herself testified that after the assault and robber on December 9, 1932,
Silvestra Baron entrusted to her nephews Ventura Cuyugan and Vivencio Cuyugan the
combination of the safe where she kept her valuables and documents and gave them the
duplicates of the keys to the interior compartments and drawers (pp. 254, 255, t.s.n.). That
Silvestra Baron did not trust her sister Faustina Baron may be inferred from the latter's own
testimony on page 291 (t.s.n.) to the effect that before the 17th of December, 1932, she did
not dare to suggests to her sister Silvestra Baron to make a will because the latter did not like
to hear anything about the matter, but she told Faustina that she had already made her will
long time ago. If to this we add the fact that a complaint was signed by Silvestra Baron against
her sister Faustina and the latter's son Emilio Lacson for the assault and robbery committed
against her, then we have a full explanation why in her will Silvestra Baron bequeathed to her
nephews almost all her property leaving to her brother and sister nothing but a life
usufruct.chanroblesvirtualawlibrary chanrobles virtual law library

Passing now to the question of lack of testamentary capacity or disposing mind, which is the
ground preferred by the majority opinion on which to base its rejection of the probate of the
said will, we find in the first place the alleged failure of the proponent to call as witnesses the
doctor and the nurse who attended Silvestra Baron immediately after she collapsed, apparently
inferring that had they testified their testimony would have been unfavorable to the claim of
sanity. The burden of proving sanity, which falls on the shoulders of the proponent of a will,
was discharged by Vivencio Cuyugan when he put to the witness stand Attorney Quirino Abad
Santos, the drawer of the will, and attorneys Vicente T. David and Valeriano Silva, and the chief
of police of San Fernando, Pampanga, Zacarias Nuguid, the three witnesses who signed the
will. They testified unanimously that when testatrix signed her will she was of sound mind,
judging from her appearance and the manner she signed it. "An attesting witness to a will may
base an opinion of the testator's mental capacity upon his appearance at the time of executing
the will. (Brownlie vs. Brownlie, 93 A.L.R., 1041.) This testimony was sufficient to make and did
make a prima facie case, (68 Corpus Juris, 450), and the burden of going forward to show
testamentary incapacity having shifted to the contestants (68 Corpus Juris, 451). It was not
therefore the duty of the proponent to call the doctor and the nurse who attended Silvestra
Baron when she collapsed to show that she was of sound mind but of the contestants to show
incapacity.chanroblesvirtualawlibrary chanrobles virtual law library

That Silvestra Baron did not become unconscious as the result of her fall is shown by the very
testimony of Epifania Sampang who said, referring to her grandaunt: "Estaba inconsciente,
lanzaba quejidos, decia: 'Faustina, Faustina'; mandaba buscar a la vieja Faustina." If the
testatrix was really unconscious as the result of said fall she would not have been able to call
her sister Faustina by her name, nor could she have given orders to locate her. Because her
grandaunt did not answer her when she called her, Epifania Sampang imagined that she was
unconscious. Thus, all the evidence concerning the unconscious state of Silvestra Baron in the
morning she made her will consisted of the testimony of Epifania Sampang alone. The doctor
who attended Silvestra Baron after her fall was the one qualified to testify as to her mental
condition and not her grandniece. The contestants whose duty it was to call said doctor to
prove unconsciousness failed to do so.chanroblesvirtualawlibrary chanrobles virtual law library

In the case of Torres and Lopez de Bueno vs. Lopez, supra, this court said:

On January 3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years old,
physically decrepit, weak of intellect, suffering from a loss of memory, had a guardian of his
person and his property, and was eccentric, but he still possessed that spark of reason and of
life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." Two of the subscribing
witnesses testified clearly to the regular manner in which the will was executed, and one did
not. The attending physician and three other doctors who were present at the execution of the
will expressed opinions entirely favorable to the capacity of the testator. Three other members
of the medical profession expressed opinions entirely unfavorable to the capacity of the testator
and certified he was of unsound mind. Held: That Tomas Rodriguez on January 3, 1924,
possessed sufficient mentality to make a will which would meet the legal test regarding
testamentary capacity; that the proponents of the will have carried successfully the burden of
proof and have shown him of sound mind on that date; and that it was reversible error on the
part of the trial court not to admit his will to probate.

While it is true that in the present case no physician testified as to the condition of Silvestra
Baron's mind when she signed her will, we have however the testimony of three reputable
attorneys to the effect that judging from her appearance and the ways she acted when she
signed her will she was of sound mind. This was corroborated by the fact that when the next
day Attorney Jose A. Narciso, upon learning that she had made a will, he tried to make her
revoked said will which she refused. This in itself is an admission that she was of sound
disposing mind. The very finding of the lower court that Silvestra Baron was unduly influenced
in the making of her will is an implied admission that she possessed testamentary
capacity.chanroblesvirtualawlibrary chanrobles virtual law library

The preponderance of evidence and the implied admission of the lower court show, therefore,
the when Silvestra Baron made her will she was of sound disposing
mind.chanroblesvirtualawlibrary chanrobles virtual law library

From all the foregoing considerations, I come to the conclusion that Silvestra Baron made her
will free from any undue influence and in a sound disposing mind, and, therefore, said will
should be probated.

EN BANC

[G.R. No. 6625. October 24, 1911.]

JUANA CAGUIOA, administratrix of the estate of the deceased Emigdio

Zarate, Petitioner-Appellee, v. MARIA CALDERON, opponent-appellant.

M. Legazpi Florendo, for Appellant.

Pedro Ma. Sison, for Appellee.

SYLLABUS

1. WILLS; UNDUE INFLUENCE; MENTAL CAPACITY; LAWFUL WILL. — Held: under the facts stated
in the opinion, that the will in question, was duly and legally authorized by the deceased, he being
of sound mind and memory, and that the same was not executed under threats or fear.

DECISION
 JOHNSON, J.:

It appears from the record that the plaintiff, upon the 17th of February, 1910, presented a petition
in the Court of First Instance of the Province of Pangasinan, praying for the probation of the last will
and testament of Emigdio Zarate, deceased, in conformity with section 630 of the Code of Procedure
in Civil Actions. The petition was accompanied by the original will, marked "Exhibit A," of said
Emigdio Zarate.

Due notice of said petition was given in accordance with law, and the hearing for the probation of
said will was fixed for the 9th of March, 1910. Later the said hearing was transferred to the 16th of
July, 1910. On the latter date the said Maria Calderon appeared, by her attorney, and opposed the
probation of said will upon the following grounds: jgc:chanrobles.com.ph

"1. That the said Emigdio Zarate was mentally incapacitated at the time he authorized and signed
his will.

"2. That he executed the said will under illegal and undue influence or persuasion on the part of
some persons who acted in behalf of the beneficiaries or heirs.

"3. That the signature of the testator was obtained by deceit or fraud, for the reason that it was not
his intention that all that was recorded in the said instrument should be his will at the time he
signed it; for the testator had informed the opponent, Maria Calderon, before and after the said will
had been signed, that he had not disposed of the one-half of the house and lot now mentioned in
the third clause, letter (a), of the said will, because the said testator recognized that the house and
lot referred to belonged to the said Maria Calderon.

"Therefore, the opponent prays the court to annul the will alleged to have been executed by
Emigdio Zarate, and to order that its probate be disallowed, with the costs against the petitioner." cralaw virtua1aw library

After hearing the evidence adduced pro and con, the lower court reached the following
conclusion:jgc:chanrobles.com.ph

"It having been proved completely on the part of the petitioner that the will in question was
executed and signed in entire conformity with all the requirements and solemnities set out in the
Code of Civil Procedure, the court overrules the opposition, sustains the petition, admits to probate
Exhibit A, holding that the same is legal in all its parts as the last will and testament of the deceased
Emigdio Zarate." cralaw virtua1aw library

From that conclusion of the lower court, the oppositor appealed to this court and made the following
assignments of error: jgc:chanrobles.com.ph

"I. The court erred in holding that the deceased, Emigdio Zarate, was in the full possession of his
mental faculties at the time of the execution of his will.

"II. The court erred in holding that the said Emigdio Zarate executed his last will and testament
without illegal persuasion or influence on the part of persons working in behalf of the heirs.

"III. The court erred in holding that Emigdio Zarate executed and signed his last will without fraud
and deceit being brought to bear upon him.

"IV. The court erred in holding that the testator signed his will in the presence of four witnesses,
Sabino Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate, who, on their part, signed,
each of them, in the presence of the others.

"V. The court erred in holding that it was proved that the will in question was executed and signed
in conformity with the requirements and solemnities set out in the Code of Civil Procedure.

"VI. The court erred in holding that the document Exhibit A, of the petitioner, is legal in all its parts,
as the last will and testament of the deceased Emigdio Zarate.
"VII. The court erred in rendering judgment in this matter without waiting for the written argument
of both sides.

"VIII. The court erred in not holding that all the proof taken together sustained the claim of the
oppositor, Maria Calderon.

"IX. The court erred in imposing the costs upon the oppositor." cralaw virtua1aw library

With reference to the first assignment of error above noted, it appears from the record that upon
the 13th day of January, 1910, Emigdio Zarate executed his last will and testament, the original of
which appears in the record and is marked "Exhibit A." Emigdio Zarate died on the 19th day of
January, 1910.

From an examination of said Exhibit A it appears to have been signed by Emigdio Zarate and by four
witnesses, Sabino M. Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate. From the
record it appears that the testator dictated his will in the Pangasinan dialect and it was then
translated into Spanish. After the will had been written in Spanish it was read to the deceased and
translated to him in the Pangasinan dialect, and, according to the allegations of the appellee, the
said Exhibit A received his approval as his last will and testament.

The appellant alleges that at the time of the execution of the said alleged will of Emigdio Zarate, he
was not in the full possession of his mental faculties. This question was presented to the lower
court. After hearing the evidence, the lower court found that Emigdio Zarate, at the time of the
execution of the said will, was in the possession of his faculties. Two of the witnesses who signed
the will, as well as others who were present in the house at the time the said will was executed,
testified that in their opinion Emigdio Zarate was of sound mind and memory at the time he signed
the said will. Practically the only testimony to the contrary adduced during the trial of the cause in
the lower court was the testimony given by two doctors, one of whom had not seen the deceased
for many months before his death, whose testimony was based wholly upon hypothetical questions.

The appellant attempted to show that Emigdio Zarate for some months prior to his death had been
troubled with insomnia, as well as some other physical infirmities. The hypothetical questions were
based upon the question whether or not a person who had been suffering with insomnia for some
months would have sufficient mental capacity to execute a will. The two doctors who appeared on
behalf of the opponents testified that insomnia tended to destroy the mental capacity, but that there
were times, even during the period while they were suffering from insomnia, when they would be
perfectly rational. Even admitting that there was some foundation for the supposition that Emigdio
Zarate had suffered from the alleged infirmities, we do not believe that the testimony was
sufficiently direct and positive, based upon the hypothetical questions, to overcome the positive and
direct testimony of the witnesses who were present at the time of the execution of the will in
question. The evidence adduced during the trial of the case, shows a large preponderance of proof
in favor of the fact that Emigdio Zarate was in the full possession of his mental faculties at the time
he executed his last will and testament.

The second and third assignments of error may be considered together. Upon the question
presented by the said assignments of error, the lower court found from the evidence that Emigdio
Zarate executed his last will and testament without threats, force or pressure or illegal influence.
The basis of the claim that undue influence had been exercised over Emigdio Zarate is that a day or
two before the said will was made, it is claimed by the opponent, Maria Calderon, that the deceased
promised to will to her a certain house (one-half of which seems to belong to her) upon the
payment by her to the deceased of the sum of P300. The P300 was never paid to the deceased and
the said property was not willed to the defendant herein. The agreement between Maria Calderon
and the deceased, if there was an agreement, seems to have been made between them privately, at
least at the time the will was made the deceased made no reference to it whatever. Those present
at the time the will was made and the witnesses who signed the same heard no statement or
conversation relating to the said agreement, between the opponent herein and the deceased. There
is no proof in the record which shows that any person even spoke to the deceased with reference to
the willing of the said house to the opponent. There is nothing in the record to indicate in the
slightest degree that any person interested in the will, or who was present at the time of the making
of the same, induced or attempted to induce the deceased not to will the said house to the
opponent herein. The theory of the opponent that the deceased did not will to her the house in
question is a mere presumption and there is not a scintilla of evidence in the record to support it.

The fourth, fifth, and sixth assignments of error may be considered together.

During the trial of the cause two of the persons who signed the will as witnesses appeared and
testified. They testified that the deceased signed the will in their presence and in the presence of
the other witnesses to the will; that they each signed the will in the presence of the testator and in
the presence of the other witnesses; that the other two witnesses who were not called also signed
the will in the presence of the testator and in the presence of each of the other witnesses. There is
no sufficient proof in the record to overcome the declarations of these witnesses. We find no reason,
therefore, for modifying the conclusion of the lower court upon these assignments of error.

With reference to the seventh assignment of error, to wit: that the court erred in rendering
judgment without waiting for the written arguments of both parties, it may be said that it is
customary for courts to wait until the parties have presented their arguments before deciding a
cause, nevertheless, it is not reversible error for a court to decide a cause without waiting for
written arguments to be presented by the respective attorneys. It appears from the record (p. 102)
that the trial of the cause was closed on the 5th of August, 1910, and that the decision in the cause
was not rendered until the 5th of October, 1910, or until after two months had expired. There is
nothing in the record which shows that either of the attorneys during these two months asked for
additional time in which to present their written arguments. It also appears of record (p. 102) that
the respective attorneys asked for fifteen days’ time within which to present their written
arguments. There is nothing in the record which shows whether they presented their written
arguments or not. If there was any fault for not having the written arguments presented before the
decision was rendered in the cause, it was clearly not the fault of the judge.

The arguments heretofore given seem to be sufficient also to answer the eighth and ninth
assignments of error.

Upon a full consideration of the evidence and the assignments of error, we are of the opinion that
the will of Emigdio Zarate, deceased, was executed and signed in entire conformity with all the
requirements and solemnities required by law. Therefore the judgment of the lower court is hereby
affirmed with costs.

Torres, Carson and Moreland, JJ., concur.

G.R. No. 6845           September 1, 1914

YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.

Chicote and Miranda for appellants.

O'Brien and DeWitt for appellee.

JOHNSON, J.:

It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing
the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila,
asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and
testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap
Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and
attached thereto was the alleged will of the deceased. It appears that the will was signed by the
deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September,
1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa
Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she
had executed a last will and testament; that he was present at the time of the execution of the
same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also
signed said will as witnesses and that they had signed the will in the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew
Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the
city of Manila; that before her death she had executed a last will and testament; that he was
present at the time said last will was executed; that there were also present Timoteo Paez and
Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will
in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the
witnesses had signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the
presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in
his judgment, she was in the possession of her faculties; that there were no threats or intimidation
used to induce her to sign the will; that she signed it voluntarily.

No further witnesses were called and there was no further opposition presented to the legalization
of the said will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of
September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed
and admitted to probate. The will was attached to the record and marked Exhibit A. The court
further ordered that one Yap Tua be appointed as executor of the will, upon the giving of a bond,
the amount of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910,
when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were
interested in the matters of the said will and desired to intervene and asked that a guardian ad
litem  be appointed to represent them in the cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem  of said
parties. Gabriel La O accepted said appointment, took the oath of office and entered upon the
performance of his duties as guardian ad litem  of said parties. On the 2d day of March, 1910, the
said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the
court on the 29th day of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law
prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was
not then mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence
upon the part of persons who were to receive a benefit from the same, and because the said
Tomasa Elizaga Yap Caong had no intention of executing the same.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa
Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th
day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been
negligent in presenting their opposition to the legalization of the will, said negligence was excusable,
on account of their age.

Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day
of September, 1909, and to grant to said minors an opportunity to present new proof relating to the
due execution of said will. Said petition was based upon the provisions of section 113 of the Code of
Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial,
attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong,
and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.

Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable
A. S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon
the 18th day of March, 1910, and directed that notice should be given to the petitioners of said
rehearing and to all other persons interested in the will. At the rehearing a number of witnesses
were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the
deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August,
1909; that in support of that allegation, the protestants, during the rehearing, presented a witness
called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon
being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit
A, in his judgment were written by two different hands, though the given name is the same as that
upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with
the surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished
and different by the tracing and by the direction of the letters in the said two exhibits; that from his
experience and observation he believed that the name "Tomasa" and "Yap Caong," appearing in the
signature on Exhibit A were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified
that while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not
tell exactly when that was, except that he had concluded his course in the year 1882; that since that
time he had been a telegraph operator for seventeen years and that he had acted as an expert in
hand- writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of
the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in
accordance with her request and under her directions; that she had signed it; that the same had
been signed by three witnesses in her presence and in the presence of each other; that the will was
written in her house; that she was sick and was lying in her bed, but that she sat up to sign the will;
that she signed the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he
knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a
witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased,
Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it
before he (the witness) did; that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had
signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen
Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen
at the door and he could not see; that he was called a a witness to sign the second will and was told
by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far
from the patient, in the house but outside the room where the patient was; that the will was signed
by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo
Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see
the table on which the will was written at the time it was signed or not; that there were many
people in the house; that he remembered the names of Pedro and Lorenzo; that he could not
remember the names of any others; that the will remained on the table after he signed it; that after
he signed the will he went to the room where Tomasa was lying; that the will was left on the table
outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he
was (the witness) had signed it; that he saw Paez sign the will, that he could not remember whether
Anselmo Zacarias had signed the will, because immediately after he and Paez signed it, he left
because he was hungry; that the place where the table was located was in the same house, on the
floor, about two steps down from the floor on which Tomasa was.

Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa
Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A).
Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had
treated her in the month of August; that he visited her first on the 8th day of August; that he visited
her again on the 9th and 10th days of August; that on the first visit he found the sick woman
completely weak — very weak from her sickness, in the third stage of tuberculosis; that she was
lying in bed; that on the first visit he found her with but little sense, the second day also, and on the
third day she had lost all her intelligence; that she died on the 11th of August; tat he was requested
to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or
anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he
believed, by the stage of uraemia from which she was suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during
the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that
Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except the last
part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the
uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as
to the terms of the will ; that the deceased had not spoken to him concerning the terms of the will;
that the will was written in the dining room of the residence of the deceased; that Tomasa was in
another room different from that in which the will was written; that the will was not written in the
presence of Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that
the other witnesses signed the will in the same room that when he went into the room where the
sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo
came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was
lying stretched out on the bed and two women, who were taking care of her, helped her to sit up,
supporting her by lacing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when he came back again to the sick
bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the
will because he withdrew from the room; that he did not know whether Tomasa had been informed
of the contents of the will or not; he supposed she must have read it because Lorenzo turned the
will over to her; that when Lorenzo asked her to sign the will, he did not know what she said — he
could not hear her voice; that he did not know whether the sick woman was him sign the will or not;
that he believed that Tomasa died the next day after the will had been signed; that the other two
witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman;
that he saw them sign the will and that they saw him sign it; that he was not sure whether the
testatrix could have seen them at the time they signed the will or not; that there was a screen
before the bed; that he did not think that Lorenzo had been giving instructions as to the contents of
the will; that about ten or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa
before she started to sign it; that the pen with which she signed the will as given to her and she
held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong
and that she was dead; that she had made two wills; that the first one was written by La O and the
second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was
present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that
the second will was exactly like the first; that Tomasa said she could not sign it.

On cross examination he testified that there was a lot of visitors there; that Zacarias was not there;
that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the
first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There
is nothing in their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that
she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa
during the last week of her illness; that Tomasa had made two wills; that she was present when the
second one was executed; that a lawyer had drawn the will in the dining room and after it had been
drawn and everything finished , it was taken to where Doña Tomasa was, for her signature; that it
was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that
there were many other people present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask
Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the
same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold
of the pen and try to sign it but she did not see the place she signed the document, for the reason
that she left the room; that she saw Tomasa sign the document but did not see on what place on
the document she signed; and that a notary public came the next morning; that Tomasa was able to
move about in the bed; that she had seen Tomasa in the act of starting to write her signature when
she told her to get her some water.

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga
Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that
he saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that
Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table
near the bed; that the table was outside the curtain or screen and near the entrance to the room
where Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and
that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions;
that Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa;
that Tomasa, from where she was lying in the bed, could seethe table where the witnesses had
signed the will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is
necessary to quote from them for the reason that their testimony in no way affects the
preponderance of proof above quoted.

At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached
the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to
the record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap
Caong and admitted it to probate and ordered that the administrator therefore appointed should
continue as such administrator. From that order the protestants appealed to this court, and made
the following assignments of error:

I. The court erred in declaring that the will, Exhibit A, was executed by the deceased
Tomasa Yap Caong, without the intervention of any external influence on the part of other
persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she
was doing at the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in
the first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A.

IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the
law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear
upon Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the
lower court found that no undue influence had been exercised over the mind of the said Tomasa
Elizaga Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa,
one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other
hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the
execution of the will, to influence her mind in any way. The lower court having had an opportunity
to see, to hear, and to note the witnesses during their examination reached the conclusion that a
preponderance of the evidence showed that no undue influence had been used. we find no good
reason in the record for reversing his conclusions upon that question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of
sound mind and memory at the time of the execution of the will, we find the same conflict in the
declarations of the witnesses which we found with reference to the undue influence. While the
testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong,
yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of
the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to
her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it. The lower court found that
there was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong
was of sound mind and memory and in the possession of her faculties at the time she signed this
will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we
do not feel justified in reversing his conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court committed an error in
declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit
1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be
said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit
1), was not the question presented to the court. The question presented was whether or not she
had duly executed the will of August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of
August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed
a former will is no proof that she did not execute a later will. She had a perfect right, by will, to
dispose of her property, in accordance with the provisions of law, up to the very last of moment her
life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to
make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in
any way sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of
Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in
her second will (Exhibit A)" the inference that she had not signed the second will and all the
argument of the appellants relating to said third assignment of error is based upon the alleged fact
that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her
write the name "Tomasa." One of the witnesses testified that she had written her full name. We are
of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong
signed any portion of her name tot he will, with the intention to sign the same, that the will amount
to a signature. It has been held time and time again that one who makes a will may sign the same
by using a mark, the name having been written by others. If writing a mark simply upon a will is
sufficient indication of the intention of the person to make and execute a will, then certainly the
writing of a portion or all of her name ought to be accepted as a clear indication of her intention to
execute the will. (Re  Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs.
Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's
Will, 61 Penn., 196; Re  Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited
by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very
suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was
found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The will was presented for probate.
The probation was opposed upon the ground that the same did not contain the signature of the
deceased. That was the only question presented to the court, whether the signature, in the form
above indicated, was a sufficient signature to constitute said paper the last will and testament of
Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either
in England or the United States; but the principle on which the decisions already referred to
were based, especially those in regard to signing by initials only, are equally applicable to
the present case, and additional force is given to them by the decisions as to what
constitutes a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne
vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14
How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is
held to "sign" as effectually as if he had written his initials or his full name. It would seem to be
sufficient, under the law requiring a signature by the person making a will, to make his mark, to
place his initials or all or any part of his name thereon. In the present case we think the proof
shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name,
did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the argument which was
preceded is sufficient to answer it also.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap
Caong did not sign her name in the presence of the witnesses and that they did not sign their
names in their presence nor in the presence of each other. Upon that question there is considerable
conflict of proof. An effort was made to show that the will was signed by the witnesses in one room
and by Tomasa in another. A plan of the room or rooms in which the will was signed was presented
as proof and it was shown that there was but one room; that one part of the room was one or two
steps below the floor of the other; that the table on which the witnesses signed the will was located
upon the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it
was possible for her to see the table on which the witnesses signed the will. While the rule is
absolute that one who makes a will must sign the same in the presence of the witnesses and that
the witnesses must sign in the presence of each other, as well as in the presence of the one making
the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient
if the signatures are made where it is possible for each of the necessary parties, if they desire to
see, may see the signatures placed upon the will.

In cases like the present where there is so much conflict in the proof, it is very difficult for the courts
to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate
courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that
opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that
Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all
her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court
admitting said will to probate is hereby affirmed with costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.

G.R. No. L-19142             March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased.

FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.

Marcaida, Capili and Ocampo for appellant.

Epimaco Molina for appellee.

OSTRAND, J.:

This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is
no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it
may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the
deceased.

In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress
and under undue influence, and that at the time of the execution of the will he was not of sound
and disposing mind.
We do not think the opponent has succeeded in proving any of his allegations. There is no evidence
whatever showing that the testator acted under duress or undue influence and the only question of
fact which we need consider is whether the testator was of sound and disposing mind when the
document in question was executed.

Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He died about eight or nine o'clock in the
evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the
same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously
that coma implies complete unconsciousness, and that the testator, therefore, could not at that time
have been in possession of his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be aroused and have lucid
intervals. Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal
witness, who visited the deceased in the evening of December 25th, says he then seemed to be in a
state of coma and that in the forenoon of December 26th, when the doctor again visited him, he
was in "the same state of coma." Maximina Ong, the wife of the opponent, the only other witness
for the opposition, states that on December 26th the deceased could not talk and did not recognize
anyone. But all the witnesses presented by the petitioner, five in number, testify that the deceased
was conscious, could hear and understand what was said to him and was able to indicate his
desires. Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that
the deceased only moved his head in answer to questions.

That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be no
doubt that he was of sound mind and capable of making his will. And we see no reason to discredit
any of these witnesses; the discrepancies found between their respective versions of what took
place at the execution of the document are comparatively unimportant and so far from weakening
their testimony rather lend strength to it by indicating the absence of any conspiracy among them.

As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The
former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere
professional speculation cannot prevail over the positive statements of five apparently credible
witnesses whose testimony does not in itself seem unreasonable.

There is no direct evidence in the record showing that the publication of the time and place of the
hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in admitting the will to probate
without proof of such publication. This question not having been raised in the court below will not
be considered here.

Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also
provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed
by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr.
N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded.

There is no merit in this contention. When, as in this case, the testimony is taken by the
stenographer of the court and certified to by him, the provision quoted can only be regarded as
directory and a failure to observe the provision will not render the testimony inadmissible. (Reese
vs. Nolan, 99 Ala., 203.)

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

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

FIRST DIVISION

[G.R. No. 6650. December 5, 1913. ]

SANTIAGO GALVEZ, Petitioner-Appellant, v. CANUTA GALVEZ, Opponent-Appellee.

 Eugenio Paguia, for Appellant.

Antonio Constantino, for Appellee.

SYLLABUS

1. WILLS; MENTAL CAPACITY OF THE TESTATOR. — In order to hold that a testator, as the result
of cholera, was not of sound mind and did not have full knowledge of his acts and was incapable of
executing a valid will, it is indispensable that the proceedings disclose conclusive proof of his mental
incapacity and of his lack of reason and judgment at the time he executed his will in due form. In
this case, aside from the evidence by the witnesses who testified that the mental faculties of the
testator were unimpaired, the contents of the will, and the desire manifested by the latter to rectify
an error he incurred in the execution of his first will, show that the testator was of sound mind and
perfectly aware of his duties with respect to the legal, inviolable rights of his daughter and sole heir.

2. ID.; ID.; PHYSICIAN’S TESTIMONY BASED ON A GENERAL RULE. — Statements by a physician

who did not see or examine the testator at the time the latter was making his will, based on the
condition and mental state of a cholera patient in ordinary cases and in the regular course of the
disease, cannot serve as a ground for declaring the testator incompetent when, notified of an error
incurred by him in his firsts will executed a few hours before, and exhibited in court, he declared his
desire to correct the same by executing a second will; inasmuch as the testimony of the subscribing
witnesses and of the person who drew up the document, shows that the mental and physical
condition of the testator was an exception to the general rule enunciated by the said physician,
since the patient demonstrated that he had sufficient moral energy and clear intelligence, in spite of
the inroads made by the disease, to have been able to execute his last will and testament in
accordance with the requirements of the law.

DECISION

TORRES, J.  :

This is appeal was raised by counsel for Santiago Galvez from the judgment of October 25, 1910,
whereby the Honorable Simplicio del Rasorio, judge, denied the petition presented by the said
Galvez for the probate of the will, Exhibit B, and appointed as adminsitratix of the testator’s estate,
the latter’s only legitimate daughter, Canuta Galvez, under condition that she furnish bond in the
sum of P2,000 for the faithful discharged of the duties of her office.

Counsel for Santiago Galvez petitioned the Court of First Instance of Bulacan for the probate of the
will which it was alleged Victor executed in the dialect of the province, on August 12, 1910, in
presence of the witnesses Juan Dimanlig, J. Leoquinco, and Nazaria Galves. This instrument appears
also to have been signed by the witness Lorenzo Galvez, below the name and surname of the
testator. (p. 3, B. of E., translated into Spanish on p.5.)

Further on in the same record, pages 6 to 7, there appears another will written in Tagalog and
executed on the same date by Victor Galvez in presence of the witnesses Cirilo Paguia, Florentino
Sison, and Juan Mendoza.

In the course of the proceedings various witnesses were examined by the petitioner and by the
respondent, Canuta Galvez, the only daughter of the alleged testator, and the attorney Antonio
Constantino stated that he waived the right to present evidence and acquiesced in the petition made
by Santiago Galvez for the probate of the will, in view of a transaction entered into by the parties;
but the court did not accept the compromise, on the ground that it is improper to hold that a will is
the faithful expression of the last wishes of a decedent, upon the mere fact of the parties’
petitioning to that effect, when such will, as in the case at bar, was assailed at the commencement
of the suit.

After due trial the judgment aforementioned was rendered, from which an appeal was entered by
counsel for the petitioner, Santiago Galvez.
This case deals with the probate of the second will executed by Victor Galvez on August 12, 1910,
and signed in his presence by the witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, and,
as the testator was no longer able to sign on account of his sickness, Lorenzo Galvez, at his request,
affixed his own signature to the instrument, for him and below his written name. This will, written in
Tagalog and translated into Spanish, is marked as Exhibit B and is found on pages 3 and 5 of the bill
of exceptions.

The other will, written in Tagalog and marked Exhibit A, was presented during the proceedings; it
was the first one the testator executed on the same date, and, for the purpose of correcting an error
contained in this first will, he executed another will, the second, which is the one exhibited for
probate.

Notwithstanding the opposition by Canuta Galvez, the testator’s daughter, who alleged that her
father, owing to his very serious sickness with cholera, lacked the intellectual capacity and clear
judgment requisite for making a will, and notwithstanding her testimony adduced in corroboration of
her brief, the record sufficiently proved the contrary; the subscribing witnesses to the will affirmed
under oath that they were present when Victor Galvez, then such in his house, stated to them that
the document read before them by Lorenzo Galvez contained his last will and testament, and that,
as the testator was no longer able to sign, he charged his nephew Lorenzo to do so in his stead,
which the latter did by affixing his own signature to the document, after having written at the foot
of the same the name and surname of the testator, Victor Galvez, who, as these witnesses
observed, was of sound mind and in the full enjoyment of his mental faculties; he talked intelligently
and with perfect knowledge of what was taking place. They further testified that they all, including
the said Lorenzo Galvez, signed the will in the presence of the testator, Victor Galvez, who was at
the time lying on his bed.

In order to hold that Victor Galvez, on account of serious sickness, was not then of sound mind and
did not have full knowledge of his acts and, therefore, was incapable to execute a will, it is
necessary that the proceedings disclose conclusive proof of his mental incapacity and of his evident
lack of reason and judgment at the time he executed his will in the presence of the witnesses whose
signatures appear at the foot thereof, for these witnesses positively affirmed that Victor Galvez, on
executing his will, showed that he was in full possession of his intellectual faculties and was
perfectly cognizant of his acts.

The physician Dr. Vicente de Jesus, in his testimony, referred to the effects and results of cholera on
a patient in ordinary cases and in the regular course of this disease; but his statements, taken in
general, cannot, in the present suit, serve as a ground upon which to predicate incapacity, for the
reason that he did not examine Victor Galvez, nor did he even see him between the hours of 12 in
the morning and 3 in the afternoon of the 12th of August, 1910, during which period the testator
ordered his will drawn up and the attesting witnesses signed it, Galvez having died at about 6
o’clock that same afternoon. It may be true that cholera patients do, in the majority of cases,
become incapacitated in the manner described by the witnesses; but there may be exceptions to the
general rule, and to judge from the testimony of the witnesses who saw and communicated with the
patient Victor Galvez at the time he executed his will, his physical and mental condition mush have
been an exception, since he demonstrated that he had sufficient energy and clear intelligence to
execute his last will in accordance with the requirements of the law.

Besides the attestation of the aforesaid subscribing witnesses, the contents of the will and the
testator’s positive determination to rectify the error he incurred in the execution of this first will,
show that Victor Galvez was in his sound mind and was perfectly aware of his duties in respect to
the legal, inviolable rights of his daughter and sole heir, Canuta Galvez.

Inasmuch as, in the drafting and execution of the second will (Exhibit B), signed in the name of the
testator by Lorenzo Galvez and the witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the
formalities prescribed by section 618 of the Code of Civil Procedure were observed, for the testator’s
name appears written at the foot of the will and under this name Lorenzo Galvez signed by direction
of the testator himself, and the instrument was also signed by the attesting witnesses before
mentioned who affirmed that they heard and attested the dispositions made by the testator and
witnessed the reading of the will, that they were present when the said Lorenzo Galvez signed the
will in the name of the testator and that they signed it in the presence of all the persons assembled
in the latter’s house, the conclusion is inevitable that Victor Galvez, in executing his will, did so with
a sound mind and the full use of his mental faculties; therefore, the will must be admitted to
probate.

For the foregoing reasons, with a reversal of the judgment appealed from in so far as it denies the
probate of the said will, we hereby hold that the same was duly executed by Victor Galvez and
expresses his last wishes, and we affirm the rest of the said judgment, with respect to the
appointment, as administratrix, of Canuta Galvez, the testator’s daughter and sole heir.

Arellano, C.J., Johnson, Carson, and Moreland, JJ., concur.

G.R. No. L-21015             March 24, 1924

MIGUELA CARRILLO, for herself and as administratrix of the intestate estate of

ADRIANA CARRILLO, deceased, plaintiff-appellant,
vs.
JUSTINIANO JAOJOCO and MARCOS JAOJOCO, defendants-appellees.

Crispin Oben and Gibbs & McDonough for appellant.

Salinas & Salinas for appellees.

AVANCEÑA, J.:

On the evening of December 9, 1918, Adriana Carrillo executed a document of sale of eleven parcels
of land, with one-half of the improvements thereon, situated in the barrio of Ulong-Tubig,
municipality of Carmona, Province of Cavite, containing an area of 330,409 square meters, in favor
of Marcos Jaojoco for the price of P4,000 which the seller admitted having received. Nine days
afterwards Adriana Carrillo was declared mentally incapacitated by the Court of First Instance and
later on died; and proceeding having been instituted for the administrator and settlement of her
estate, her sister Miguela Carrillo was appointed judicial administratrix of said estate. In her capacity
as such administratrix, Miguela Carrillo now brings this action for the annulment of said contract of
sale executed by Adriana Carrillo on December 9, 1918, against Marcos Jaojoco, the purchaser, and
his father Justiniano Jaojoco. The defendants were absolved from the complaint, and from this
judgment the plaintiff appealed.

The plaintiff has attempted to prove that prior to the year 1918 and specially in the year 1917,
Adriana Carrillo performed acts which indicated that she was mentally deranged. We have made a
thorough examination of the character of those acts, and believe that they do not necessarily show
that Adriana Carrillo was mentally insane. The same thing can be said as to her having entered the
"Hospital de San Lazaro" and the "Hospicio de San Jose," in the absence of an affirmative showing
to her motive for entering said institutions, for while it is true that insane persons are confined in
those institutions, yet there also enter persons who are not insane. Against the inference that from
said acts the plaintiff pretends to draw, in order to assert the mental incapacity of Adriana Carrillo in
that time, there is in the record evidence of acts while more clearly and more convincingly show that
she must not have been mentally incapacitated before the execution of the document sought to be
annulled in this action. In January, 1917, her husband having died, she was appointed judicial
administratrix of the latter's estate, and to his end she took the oath of office, gave the proper bond
discharged her functions in the same manner and with the same diligence as any other person of
knowingly sound mind would have done. Documents, were introduced which show complex and
numerous acts of administration performed personally by said Adriana Carrillo, such as the
disposition of various and considerable amounts of money in transactions made with different
persons, the correctness of said acts never having been, nor can it be, put in question. We have
given special attention to the fact of Adriana Carrillo having executed contracts of lease, appeared in
court in the testate proceeding in which she was administratrix, and in fact continued acting as such
administratrix of the estate of her husband until August, 1917, when for the purpose of taking
vacation, she requested to be relieved from the office. On November 13, 1918, Adriana Carrillo
entered the "Hospital de San Juan de Dios" by reason of having had an access of cerebral
hemorrhage with hemiplegia, and there she was attended by Doctor Ocampo until she left on the
18th of December of the same year very much better off although not completely cured. Asked
about the mental incapacity of Adriana Carrillo during her treatment, Doctor Ocampo answered that
he did not pay attention to it, but that he could affirm that the answers she gave him were
responsive to the questions put to her, and that the hemiplegia did not affect her head but only one-
half of the body. After leaving the "Hospital de San Juan de Dios" on December 8, 1918, Adriana
Carrillo called at the office of the notary public, Mr. Ramos Salinas, and there executed the contract
of sale in question on the 9th of that month. The notary, Mr. Salinas, who authorized the document,
testified that on that day he has been for some time with Adriana Carrillo, waiting for one of the
witnesses to the document, and he did not notice anything abnormal in her countenance, which on
the contrary, appeared to him dignified, answering correctly all the questions he made to her
without inconsistencies or failure of memory, for which reason, says this witness, he was surprised
when afterwards he learned that the mental capacity of Adriana Carrillo was in question.

It must be noted that the principal witness for the plaintiff and the most interested party in the case,
being the plaintiff herself, was the surety of Adriana Carrillo when the latter was appointed judicial
administratrix of the estate of her husband in 1917. It cannot be understood, if Adriana Carrillo was
in that time mentally incapacitated, why Miguela Carrillo, the plaintiff, who knew it, consented to be
a surety for her. It must likewise be noted that the other witnesses of the plaintiff, who testified to
the incapacity of Adriana Carrillo, also made transactions with her precisely at the time, when
according to them, she was mentally incapacitated. In view of all of this, which is proven by
documents and the testimonies of witnesses completely disinterested in the case, it cannot be held
that on December 9, 1918, when Adriana Carrillo signed the document, she was mentally
incapacitated.

The fact that nine days after the execution of the contract, Adriana Carrillo was declared mentally
incapacitated by the trial court does not prove that she was so when she executed the contract.
After all, this can perfectly be explained by saying that her disease became aggravated
subsequently.

Our conclusion is that prior to the execution of the document in question the usual state of Adriana
Carrillo was that of being mentally capable, and consequently the burden of proof that she was
mentally incapacitated at a specified time is upon him who affirms said incapacity. If no sufficient
proof to this effect is presented, her capacity must be presumed.

Attention is also called to the disproportion between the price of the sale and the real value of the
land sold. The evidence, however, rather shows that the price of P4,000 paid for the land, which
contained an area of 33 hectares, represents it real value, for its is little more than P100 per
hectare, which is approximately the value of other lands of the same nature in the vicinity. But even
supposing that there is such a disproportion, it alone is not sufficient to justify the conclusion that
Adriana Carrillo was mentally incapacitated for having made the sale under such conditions. Marcos
Jaojoco is a nephew of Adriana Carrillo, and Justiniano Jaojoco her brother-in-law, and both
defendants, who are father and son, had Adriana Carrillo in charge, took her to the "Hospital de San
Juan de Dios," and cared for her during the time she was there, and for such acts they may have
won her gratitude. Under these circumstances there is nothing illegal, or even reprehensible, and
much less strange in Adriana Carrillo's having taken into account those services rendered her by the
defendants and reciprocated thereof by a favorable transaction. Having no ascendants and
descendents, she could, in consideration of all the these circumstances, have even given as a
donation, or left by will, these lands to the defendants.

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

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

G.R. No. L-10027            November 13, 1915

ROSENDO HERNAEZ y ESPINOSA, plaintiff-appellant,

vs.
MATEO HERNAEZ y ESPINOSA, ET AL., defendants-appellants.

Ruperto Montinola for plaintiff.

Enrique C. Locsin for defendants.
TRENT, J.:

The spouses, Pedro Hernaez and Juana Espinosa, died, leaving several legitimate descendants.
Neither of their estates had been divided up to the date of the institution of this action, but were
both under administration. Their son, Domingo Hernaez y Espinosa, sold all his interest in both his
father's and mother's estate to his son, Vicente Hernaez y Tuason, on November 6, 1901.
Notwithstanding the fact that Domingo Hernaez y Espinosa had thus parted with all his interest in
the estates of his two parents, he executed a document of sale in favor of Alejandro Montelibano y
Ramos on February 27, 1907, in which he purported to convey all his undivided interest in his
mother's estate. On the same date he executed another document of sale in which he purported to
convey to Jose Montelibano Uy-Cana four-eighteenths of his interest in his mother's estate. Both of
these sales were made with the connivance of his son, Vicente Hernaez y Tuason. Hence, although
Vicente Hernaez y Tuason had actually purchased all of his father's interests in the estates of Pedro
Hernaez and Juana Espinosa as early as November 6, 1901, and was, on February 27, 1907, the
undoubted owner thereof, he is effectually estopped from asserting his title as against either of the
vendees mentioned in the documents of sale dated February 27, 1907, to which we have just
referred. (Code Civ. Pro., sec. 333, No. 1.) Bigelow on Estoppel (p. 607) says:

. . . it is now a well-established principle that where the true owner of property, for however
short a time, holds out another, or, with knowledge of his own right, allows another to
appear as the owner of or as having full power of disposition over the property, the same
being in the latter's actual  possession, and innocent third parties are thus led into dealing
with such apparent owner, they will be protected.

On August 19, 1912, Jose Montelibano Uy-Cana sold his interest in the estate to Alejandro
Montelibano y Ramos. By this transfer, the latter stood owner of all the interest of Domingo Hernaez
y Espinosa in the estate of Pedro Hernaez, and five-eighteenths of his interest in the estate of Juana
Espinosa as against Vicente Hernaez y Espinosa.

It is admitted that Rosendo Hernaez y Espinosa, another son of the deceased spouses administrator
of the estates, was notified of Montelibano's purchases on January 8, 1913, when he received notice
of Montelibano's motion, entered in the administration proceedings, asking that he (Montelibano) be
substituted as assignee of the interests of various heirs of the estate which he had acquired by
purchase. Notwithstanding this knowledge, Rosendo Hernaez y Espinosa entered into a contract of
sale with Vicente Hernaez y Tuason, whereby the latter purported to convey all the interest, which
he had acquired from his father, in the estate of the deceased spouses, Pedro Hernaez and Juana
Espinosa. It will be remembered that he purchased his father's share of the estate on November 6,
1901; that he is estopped from asserting title to any interest in his grandfather's estate and in five-
eighteenths of his grandmother's estate. Rosendo Hernandez y Espinosa purchased with full
knowledge of these facts. He, therefore, acquired thirteen-eighteenths of the interest of Domingo
Hernaez y Espinosa in the estate of the latter's mother nothing more.  lawph!l.net

That rule is that the holder [Alejandro Montelibano y Ramos] of a prior equitable right has
priority over the purchaser [Rosendo Hernandez y Espinosa] of a subsequent estate
(whether legal or equitable) without value, or with notice of the equitable right, but not as
against a subsequent purchaser for value and without notice. (Ewart on Estoppel, p. 199.)

Alejandro Montelibano y Ramos has acquired in his interest in the estate of the deceased spouses
for a valuable consideration and in good faith, and there remains to the plaintiff, Rosendo Hernaez y
Espinosa, only the right of subrogation allowed him by article 1067 of the Civil Code, which reads as
follows:

If any of the heirs should sell his hereditary rights to a stranger before the division, all or
any of the co-heirs may subrogate himself in the place of the purchaser, reimbursing him for
the value of the purchase, provided they do so within the period of a month, to be counted
from the time they were informed thereof.

On January 24, 1913, the plaintiff instituted this action seeking to subrogate himself in the rights
acquired by Montelibano in the estate. Unless the plaintiff can be charged with actual notice of the
conveyance by which Montelibano acquired these interests, prior to January 8, 1913, it is clear that
he has opportunely asserted his right of subrogation. This is purely a question of fact. As to the
sales whereby Domingo Hernaez y Espinosa parted with that portion of his interest in the estate
which is now held by Alejandro Montelibano, as well as to those sales made by other heirs to
Montelibano, the trial court found that the plaintiff, Rosendo Hernaez y Espinosa, was not
chargeable with notice prior to January 8, 1913. After a careful examination of the record we see no
reason for disturbing this finding of fact. As a consequence, the plaintiff, Rosendo Hernaez y
Espinosa, is entitled to exercise his right of subrogation in accordance with article 1067, above
quoted. lawph!1.net

The interest which Jose Montelibano Uy-Cana purchased from Domingo Hernaez y Espinosa on
February 27, 1907, for the sum of P4,500, he afterwards transferred to Alejandro Montelibano y
Ramos for the sum of P10,000. In rendering judgment, the trial court decreed that the plaintiff,
Rosendo Hernaez y Espinosa, should pay the latter sum for the privilege of exercising the right of
subrogation. This was error. Article 1067 of the Civil Code provides that the co-heir may exercise
this right of subrogation upon the payment to the purchaser of another heir's interest, "el precio de
la compra" (the purchase price). Obviously, if the interest had not been resold, the plaintiff, Rosendo
Hernaez y Espinosa, would have had to pay only the price for which Uy-Cana acquired it. The
purpose of the article cannot be evaded by a reconveyance of the interest to a third person at a
higher price. Subsequent purchasers of the interest acquire it burdened with the right of subrogation
of co-heirs at the price for which the heir who sold it parted with it.

It is urged that the prices in some of the deeds of sale by which Alejandro Montelibano y Ramos
purchased the interest of various heirs in the estates are fictitious. This is a question of fact upon
which both parties adduced evidence, and we concur in the opinion of the trial court that there is no
basis to the charge. For the foregoing reasons, the judgment of the court is modified by
substituting, as the price of subrogation of the interest originally purchased by Jose Montelibano Uy-
Cana, the sum of P4,500, as set out in Exhibit 7, for the sum of P10,000, the consideration
expressed in Exhibit 10. As modified, the judgment appealed from is affirmed, without costs. So
ordered.

Arellano, C.J., Torres, and Carson, JJ., concur.

Johnson, J., concurs in the result.

C.A. No. 4             March 21, 1946

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD
NEYRA, petitioner-appellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, oppositors-
appellants.

TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. BLANCO, petitioners-

appellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositors-appellees.

Lucio Javillonar for oppositors and appellants.

Alejandro M. Panis for applicants and appellees.

DE JOYA, J.:

This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First
Instance of the City of Manila, on December 3, 1943, admitting to probate a will dated November 3,
1942, executed by the deceased Encarnacion Neyra; at the same time denying the probate of a
previous will dated September 14, 1939, alleged to have been executed by the said testatrix.

Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942,
a petition in the Court of First Instance of Manila, for the probate of said will.

On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who
had not been named as beneficiaries in said will, filed on opposition to the probate of the said will
dated November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the
testatrix Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks
on said instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that
Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated
November 3, 1942, had not been executed in the manner and form prescribed by law; and(4) that
Encarnacion Neyra, since September 14, 1939, had executed a will, naming as beneficiaries said
oppositors and others, and that said will had never been revoked or amended in any manner
whatsoever.

On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the
opposition.

Subsequently, said oppositors filed a counter petition, asking for the probate of the first will
executed by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943,
the legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate on said will
marked as Exhibit 16, and amended said opposition, on September 15, 1943, to which Teodora
Neyra and the others filed a reply, on September 20, 1943.

On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition
mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and
documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente
Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa,
Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had acted as
scrivener in the preparation of said will dated November 3, 1942.

Teodora Neyra and the other oppositors also presented several witnesses, the principal among
whom were Presentacion Blanco, Caferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged
medical expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves.

After considering the evidence, the lower court rendered a decree admitting to probate the will
dated November 3, 1942; at the same time denying the probate of the will dated September 14,
1939.

From said decision Teodora Neyra and the other oppositors appealed to the Court of Appeals for the
City of Manila, assigning several errors, which may be reduced to the following, to wit, that the trial
court erred (1) in finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that
there was reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in accepting as
satisfactory the evidence submitted by the petitioner; (4) in ignoring the evidence submitted by the
oppositors; and (5) in not admitting to probate the will dated September 14, 1939.

The evidence, testimonial and documentary, adduced during the trial of the case in the court below,
has satisfactorily and sufficiently established the following facts:

That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties
and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several
other relatives; that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and
Trinidad Neyra, had serious quarrels, in connection with the properties left by their deceased father,
and so serious were their dissensions that, after March 31, 1939, they had two litigations in the
Court of First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case,
filed on March 31, 1939, Trinidad Neyra and others demanded from Encarnacion Neyra et al. the
annulment of the sale of the property located at No. 366 Raon Street, Manila, and it was finally
decided in favor of the defendants in the Court of First Instance and in the Court of Appeals, on
December 21, 1943 (G.R. No. 8162, Exhibit 9).

In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra,
one-half (½) of the property described therein, and one-half (½) of the rents, and the Court of First
Instance decided in favor of the plaintiff, but at the same time awarded in favor of the defendant
P727.77, under her counterclaim; and Trinidad Neyra again elevated the case to the Court of
Appeals for Manila (G.R. No. 8075) Exhibit 8, which was decided, pursuant to the document of
compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains
undecided.
That Encarnacion Neyra, who had remained single, and who had no longer any ascendants,
executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of
the "Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra,
Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will in
favor of her only sister Trinidad Neyra, who had become her bitter enemy; that when the said will
was brought to the attention of the authorities of said Congregation, after due deliberation and
consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and
said decision of the Congregation was duly communicated to her; that in order to overcome the
difficulties encountered by said religious organization in not accepting the generosity of Encarnacion
Neyra, the latter decided to make a new will, and for that purpose, about one week before her
death, sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and LaO,
and gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing
a new will, in accordance with the express instructions given by Encarnacion Neyra, merely prepared
a draft in the form of a codicil, marked as Exhibit M, amending said will, dated September 14, 1939,
again naming said religious organization, among others, as beneficiary, and said draft of a codicil
was also forwarded to the authorities of the said religious organization, for their consideration and
acceptance.

In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and
on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of
the Quiapo Church to make confession, after which she expressed her desire to have a mass
celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy
communion, in view of her condition; that following the request of Encarnacion Neyra, Mons.
Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the
house of Encarnacion Neyra, and, as a matter of fact, on November 1, 1942, holy mass was
solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said
ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that
after said religious ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and
advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion
Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio
Mendoza to fetch her sister Trinidad Neyra, who came at about 2:30 that same afternoon; that on
seeing one another, the two greeted each other in a most affectionate manner, and became
reconciled; that the two had a long and cordial conversation, in the course of which the two sisters
also talked about the properties left by their deceased father and their litigations which had reached
the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on
the condition that the property involved therein, consisting of a small house and lot, should be given
exclusively to Trinidad Neyra, on the condition that the latter should waive her claim for her share in
the rents of said property, while under the administration of Encarnacion Neyra, and that the two
should renounce their mutual claims against one another. It was also agreed between the two
sisters to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said
agreement, but Attorney Panis could come only in the afternoon of the following day, November 2,
1942, when Encarnacion gave him instructions for the preparation of the document embodying their
agreement, and other instructions relative to the disposition she wanted to make of her properties in
her last will and testament; that Attorney Panis prepared said document of compromise or
agreement marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming
Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions
given by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942;
that in the afternoon of that day, November 3, 1942; Attorney Panis read said will and testament
marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro
Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra, and others, after
which he asked her if its terms were in accordance with her wishes, if she had anything else to add,
or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will
were in accordance with her wishes and express instructions, she asked for the pad and the will
Exhibit C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said
will, in the presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and
Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot of the document, in
the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting
witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present.

On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died.
Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the
provision made in its favor by the testatrix Encarnacion Neyra in the proposed codicil prepared by
Atty. Ricardo Sikat, said decision could not be communicated to the testatrix, before her death.

Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31,
1942, by Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942;
that said mass was in fact solemnized in her house, on that date, in the course of which the testatrix
Encarnacion Neyra took holy communion; that on the same day, after the mass, Encarnacion held a
long conversation with Father Garcia, in the course of which, said priest advised her to have
reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion.

But the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to
fetch her, and that in fact she came to the house of Encarnacion, at about 2:30 o'clock in the
afternoon that same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one
another, Encarnacion and Trinidad Neyra greeted each other most affectionately, forgiving one
another, after which they talked about the property left by their deceased father and the litigation
pending between them; and the two sisters agreed to settle their case, which had been elevated to
the Court of Appeals for the City of Manila, concerning a certain house and lot, on the understanding
that said property should be given exclusively to Trinidad, and that the latter should renounce her
claim against Encarnacion, for her share in the rents collected on said property, and, at the same
time, Encarnacion renounced her claim for P727.77 against Trinidad; and that it was also agreed
between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary
papers for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also
testified substantially to the foregoing facts.

By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses,
it has also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day,
November 2, 1942, and received instructions from Encarnacion Neyra, not only for the preparation
of said agreement, but also for the preparation of a new will, and consequently Attorney Panis
prepared said document of compromise and the will, dated November 3, 1942, which were both
thumb marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of
sound mind, as shown by her appearance and conversation, aided by a son of Trinidad Neyra, on
her bed in the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R.
Aldecoa, and Atty. Alejandro M. Panis, who signed in the presence of the testatrix and of each other.

Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion
Neyra, and so was Trinidad Neyra.

On November 4, 1942, due to a heart attack as a consequence of Addison's disease, perhaps,

Encarnacion Neyra expired, at about 3 o'clock in the morning.

Oppositor Teodora Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco,

daughter of oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the
witnesses of the petitioner, with reference to the signing of documents, in the bedroom of
Encarnacion Neyra, on November 3, 1942.

Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified,
however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the
document of compromise in question, dated November 3, 1942, she was sleeping on her bed in
the sala; and that the attesting witnesses were not present, as they were in the caida.

But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed
the documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting
herself and Teodora Neyra and Presentacion Blanco.

Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that
Encarnacion Neyra's thumb mark was affixed to the will, only in the morning of November 4, 1942,
by Trinidad Neyra and Ildefonso del Barrio, when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of
Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion
Neyra.

According to the medical authorities, the cause or causes of the sleeping sickness, known as
Addison's disease, are not yet fully known: that persons attacked by said decease often live as long
as ten (10) years after the first attack, while others die after a few weeks only, and that as the
disease, progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop
tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935,
pp. 1250, 1252, 1253; MaCrae, Osler's Modern Medicine, 3d ed., Vol. V. pp. 272-279).

And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of
48, died on November 4, 1942, due to a heart attack, after an illness of about two (2) years.

In connection with testamentary capacity, in several cases, this court has considered the testimony
of witnesses, who had known and talked to the testators, more trustworthy than the testimony of
alleged medical experts.

Testamentary capacity is the capacity to comprehend the nature of the transaction in which the
testator is engaged at the time, to recollect the property to be disposed of, and the persons who
would naturally be supposed to have claims upon the testator, and to comprehend the manner in
which the instrument will distribute his property among the objects of his bounty. (Bugnao vs. Ubag.
14 Phil., 163.)

Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of
a will, who stated that it tended to destroy mental capacity, was held not to affect the full
possession of the mental faculties deemed necessary and sufficient for its execution.
(Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite
of the physician's testimony to the contrary, to the effect that she was very weak, being in the third
or last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The
testimony testimony of the attending physician that the deceased was suffering from diabetes and
had been in a comatose for several days, prior to his death, was held not sufficient to establish
testamentary incapacity, in view of the positive statement of several credible witnesses that he was
conscious and able to understand what said to him and to communicate his desires.
(Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly
sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in
order that he might sign, is sufficient to invalidate his will. (Amata and Almojuela vs. Tablizo, 48
Phil., 485.)

Where it appears that a few hours and also a few days after the execution of the will, the testator
intelligently and intelligibly conversed with other persons, although lying down and unable to move
or stand up unassisted, but could still effect the sale of property belonging to him, these
circumstances show that the testator was in a perfectly sound mental condition at the time of
executing the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)

Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning
and also at about 6 o'clock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her
and that they understood each other clearly, thus showing that the testatrix was really of sound
mind, at the time of the signing and execution of the agreement and will in question.

It may, therefore, be reasonably concluded that the mental faculties of persons suffering from
Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on
account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest.
And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental
faculties until the moments of their death.

Judging by the authorities above cited, the conclusion made the trial court that the testatrix
Encarnacion Neyra was of sound mind and possessed testamentary capacity, at the time of the
execution of the will, cannot be properly disturbed.
The oppositors also claim that the attesting witnesses were not present, at the time that the
testatrix thumbed marked the will in question, on her bed, in the sala of the house, as they were
allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the
time of the signing and execution of the agreement and will in question, in the sala, where the
testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time
of the signing of the will, but whether they might have seen each other sign, had they chosen to do
so; and the attesting witnesses actually saw it in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And
the thumbmark placed by the testatrix on the will is equivalent to her signature. (Yap Tua vs. Yap
Ca Kuan and Yap Ca Llu, 27 Phil., 579.)

The oppositors as well as their principal witnesses are all interested parties, as said oppositors had
been named legatees in the will dated September 14, 1939, but eliminated from the will dated
November 3, 1942.

On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no
interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three
attesting witnesses are professional men of irreproachable character, who had known and seen and
talked to the testatrix.

Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have
been no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was
affixed to the document embodying the agreement, while she was sleeping, on November 3, 1942,
in their presence; and that her thumb mark was affixed to the will in question, when she was
already dead, in the morning of November 4, 1942, within their view is preposterous, to say the
least. Said testimony is contrary to common sense. It violates all sense of proportion. The oppositors
and their witnesses could not have told the truth; they have testified to brazen falsehoods; and they
are, therefore, absolutely unworthy of belief. And to the evidence of the oppositors is completely
applicable the rule falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728, 735.)

In the brief presented by counsel for the oppositors and the appellants, to show the alleged
improbability of the reconciliation of the two sisters and the execution of the will, dated November 3,
1942, they have erroneously placed great reliance on the facts that, up to October 31, 1942, the
two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on
the common belief that the hatred of relatives is the most violent. Dreadful indeed are the feuds of
relatives, and difficult the reconciliation. But they had forgotten the fact that Encarnacion Neyra was
a religious and pious woman instructed in the ancient virtues of Christian faith and hope and charity,
and that it was godly to forgive and better still to forget.

It was most natural that there should have been reconciliation between the two sisters, Encarnacion
and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole
blood. The approach of imminent death must have evoked in her the tenderest recollections of
childhood. And believing perhaps that her little triumphs had not always been fair to her sister who
in fact, had had successively instituted two suits against her, to recover what was her due, and for
which Encarnacion believed she must atone, she finally decided upon reconciliation, so that she
might depart in peace.

The record shows that, of the two, Encarnacion lived in greater opulence, and that Trinidad had
been demanding tenaciously her share; and as a Christian woman, Encarnacion must have known
that no one has any right to enrich himself unjustly, at the expense of another. And it was,
therefore, natural that Encarnacion should desire reconciliation with her sister Trinidad, and provide
for her in her last will and testament.

As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so
many years and so well, it was also natural that she should make some provision for him, as
gratitude is the noblest sentiment that springs from the human heart.

The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named
therein, including principally her bitterest enemy of late, which is completely incompatible with the
will, dated September 14, 1939, may really seem strange and unusual; but, as it has been truly said,
above the logic of the head is the feeling in the heart, and the heart has reasons of its own which
the head cannot always understand, as in the case of intuitive knowledge of eternal verity.
As Encarnacion Neyra felt the advent of immortality, she naturally wanted to follow "the path of the
just, which is as the shining light that shineth more and more unto the perfect day," so that her
memory may be blessed. As a Christian woman, she must have loved justice, mercy and truth and
to follow the law, for this is the whole duty of man.

In the present case, the court cannot find any reason or justification to alter the conclusions set
forth in the decree appealed from. This court will not reverse any findings of fact by the trial court
made upon conflicting testimony and depending largely upon the credibility of witnesses, who
testified in the presence of the trial judge, unless the court below failed to take into consideration
some material facts or circumstances, or to weigh accurately all of the material facts and
circumstances presented to it for consideration. (Baltazar vs. Alberto, 33 Phil., 336;
Melliza vs. Towle, 34 Phil., 345; Caragay vs. Urquiza, 53 Phil., 72, 79; Garcia vs. Garcia de
Bartolome, 63 Phil., 419.)

After a careful consideration of the evidence and the law of this case, we find it legally impossible to
sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore,
affirmed, with costs against the appellants. So ordered.

Ozaeta, Perfecto, Hilado, and Bengzon, JJ., concur.

G.R. No. L-7801             April 13, 1956

Testate Estate of Dña. Perpetua A. Vda. de Soriano.

DOLORES ALBORNOZ, peitioner.
ELIAS RACELA, claimant-appellant,
vs.
DOLORES ALBORNOZ and JOSE ALBORNOZ, co-special administrators oppositors-appellees.

Ruiz, Ruiz, Ruiz and Ruiz and Santiago Andres for appellant.
Jose Y. Torres for appellees.

LABRADOR, J.:

The present appeal refers to two claims presented by Elias Racela against the estate of the
deceased Perpetua Vda. de Soriano and which were dismissed by the trial court. The first claim is
based on a supposed sale of one hectare of land for P1,000 executed by the decedent on July 18,
1933 in favor of the claimant. The second is based on another supposed sale of another part of the
defendant's land for P1,000 also, in favor of the claimant, made on September 23, 1933. The
supposed sales appear in two deeds marked Exhibits "A" and "B". After the supposed sales were
made, the decedent sold the same parcels of land in 1934 to one Soriano Ballesteros, who
succeeded in registering the deed of sale in his favor. Claimant attempted to register the deeds
executed in his favor but the decedent opposed registration. So claimant brought a criminal action
against the decedent for estafa (Criminal Case No. 6406 of the Court of First Instance of Ilocos
Norte). The court acquitted the decedent of the charge, a portion of the decision and the dispositive
part thereof is as follows:

Analizados estos hechos, el Juzgado se inclina a creer como asi cree que Elias Racela no ha
entregado ninguna cantidad de dinero a la acusada como pago de la venta, alegada por la
acusacion . . .

Es digna credito la pretension de la acusada de que los dos escrituras marcadas Exhibitos 'A'
y 'B' han sido otorgadas por ellasolamente para que Elias Racela pudiera convencer a los
vecinos del barrio de Biding, Dingras, Ilocos Norte, que la acusada podia disponer librement
de sus bienes? El Juzgado fundandose en los hechos arriba expuestos, es de opinion que
si. . . Este acto de la acusada a juicio del Juzgado, es compatible con su crecencia de que en
ninguna ocasion habia vendido terrenos a Elias Racela . . .

xxx     xxx     xxx

A la luz de las consideraciones de hechos arriba apuntadas el Juzgado duda de la verdad de

la teoria de la acusacion y, por ende, la acusada tiene derecho a los beneficios de esta duda.
 Pero esta conclusion del Juzgado no priva a Elias Racela de su derecho de presentar una
accion civil contra la aqui acusada, si se que todavia no estan pagados honorarios por los
servicios prestados a la misma.

After the presentation of the plaintiff in the court below, the Judge, upon motion of counsel for the
defendant, dismissed the action in the following words:

It is seen from Ehibit '1' that the criminal action for estafa against the deceased Perpetua A.
Vda. de Soriano was founded on Exhibits 'A' and 'B' and 'C', the deeds of sale, and the
present claim of the claimant is also founded on the same exhibits with the exception of
Exhibit 'C' which was not presented by the said claimant, having been substituted by him
with his own oral testimony. Therefore, the inevitable conclusion is that the acquittal of the
deceasd-accused, Perpetua Vda. de Soriano, produces the effect of exemption of her estafa
from any civil liability.

FOR THE FOREGOING, the motion to dismiss is GRANTED, and the claim of Elias Racela is
DISMISSED.

WITHOUT COSTS.

It is against the above judgment that this appeal has been prosecuted. Claimant-appellant argues
that the judgment of acquittal in the criminal action was based on reasonable doubt and therefore it
cannot amount to a judicial declaration "that the fact from which the civil might arise did not exist."
A study of the judgment of acquittal in the said criminal action readily discloses that the decedent
did not sell any land to Elias Racela and that the deeds of sale Exhibits "A" and "B" were executed
by the decedent in order to enable Elias Racela to convince the residents of a barrio that the
decedent could freely dispose of his properties. Witness the following portions of the judgment,
Exhibits "1.

La unica cuestion a resolverse en esta causa es la de si la acusada habia vendido a Elias

Racela las dos parcelas de terreno que se describen los exhibitos 'A' y 'B' respectivamente.
Para resolver esta cuestion el Juzgado entiende que no debe atenerse solamente a los
mencionados exhibitos sino tambien a la version de los testigos de la defensa y el estado
finaciero de la acusada.

Analizados estos hechos, el Juzgado se inclina a creer como asi cree que Elias Racela no ha
entregado ninguna cantidad de dinero a la acusada como pago de la venta alegada por la
acusacion; porque si fuese cierto el hecho de que Elias Racela habia entregado el dinero
importe de cada uno de los terrenos descritos en los exhibitos 'A' y 'B', respectivamente, no
se coomprende como y porquese habian puesto en el Exhibito 'B' las palabras 'and services
rendered": En opinion del Juzgado estas palabras 'and services rendered' puestas despues
de las palabras 'One Thousand Pesos Philippine Currency to me' revelan que Elias Racela en
la ocasion en que se redacto la escritura daba a entender que lo que el habia pagado a la
acusada era el valor de sus servicios. Si esto es el caso, Elias Racela al afirmar en el dia de la
vista de este causa que el habia entregado dinero a la acusada no ha dicho la verdad; y por
tanto debe estimarse por buena la teoria de la acusada al efecto de que ella no habia
vendido ningun terreno a Elias Racela.

The theory upon which the present claim of Elias Racela is based that the deceased sold the parcels
of land to Elias Racela and the latter paid the deceased the price therefor or P2,000. The above-
quoted portions of the decision clearly indicate that no actual sale was made and that the deeds
Exhibits "A" and "B" were executed for another purpose and were, therefore, simulated sales. The
judgment in the criminal action, therefore, contains an express declaration that the basis of
claimant's action for P2,000, or the sales of said parcels of land to the claimant and the receipt by
the decedent therefor for P2,000, did not exist. Claimant's action is barred under section 1 (d), Rule
107, which provide:

(d) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the civil
might arise did not exist. . .
In view of the above conclusion, it is unnecessary to consider the claim of the claimant-appellant
that he had submitted sufficient evidence to sustain defendant's liability. The judgment appealed
from is hereby affirmed, with costs against the claimant.

Paras, C. J., Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion, Reyes, J. B. L.,
and Endencia, JJ., concur.

ART 800

G.R. No. L-18498             March 30, 1967

TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-appellee,

vs.
CRISPIN BORROMEO, ET AL., oppositors-appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.

Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo.

Crispen Baizas and Associates for heirs oppositors-appellants Tomas Borromeo and Amelia
Borromeo.
Office of the Solicitor General for intervenor oppositor-appellant Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants Crispin Borromeo, Teofilo
Borromeo, et al.
Filiberto Leonardo for petitioner-appellee.

DIZON, J.:

Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in
Parañaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the
province of Cebu.

On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said
province a petition for the probate of a one page document as the last will left by said deceased,
devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and
undivided shares, and designating Junquera as executor thereof (Special Proceedings No. 916-R).
The document — now in the record as Exhibit "A" — was dated May 17, 1946, drafted in Spanish,
and allegedly signed, and thumbmarked by said deceased, in the presence of Dr. Cornelio G.
Gandionco, Eusebio Cabiluna and Filiberto Leonardo as attesting witnesses. On June 14, 1952, the
probate court appointed Junquera as special administrator of the estate.

On November 14 of the same year, Teofilo Borromeo filed an opposition to the probate of the will
based on the following grounds: (1) that the formalities required by law had not been complied
with; (2) that the testator was mentally incapable of making a will at the time of its execution; (3)
that the will was procured by undue and improper influence, on the part of the beneficiaries and/or
some other person; (4) that the signature of the testator was procured by fraud; and (5) that the
testator acted by mistake or did not intend the instrument he signed to be his will at the time he
affixed his signature thereto.

Upon motion of the abovenamed oppositor, on June 9, 1953, the Court removed Junquera as special
administrator and appointed Dr. Patricio Beltran in his place.

On November 27, 1953, Vitaliana Borromeo, a niece of the deceased, filed her own opposition to the
probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a
forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her
opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de
Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking
substantially the same grounds mentioned heretofore.

Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on behalf of the "Cebu Arcade
Company, T. L. Borromeo y Cia.", a duly organized partnership controlled by them, filed a motion to
exclude from the inventory of the Estate previously filed by the new special administrator, thirteen
parcels of land situated in the City of Cebu with a total area of 2,148 square meters, alleging that
during his lifetime the deceased testator had sold said lots to them, as evidenced by the document
now in the record as Exhibit F-1 executed on May 17, 1945, confirming the alleged previous sale.
After due hearing, the court, in its order of July 16, 1954, denied the motion for exclusion, ruling
that movants' remedy was to file a separate accion reivindicatoria against the administrator.

On October 28, 1955, the Republic of the Philippines filed a motion for leave to intervene and join
the oppositors in contesting the probate of the will, on the ground that, should the estate be
adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and
inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention.

After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the
will and declaring itself without jurisdiction to pass upon the question of ownership over the thirteen
lots which the Cebu Arcade etc. claimed as its own. All the parties appealed — the proponents of the
will from the portion of the decision denying probate, and the oppositors and the Republic of the
Philippines, from that portion thereof where the court refused to decide the question of ownership of
the thirteen lots already mentioned.

The proponents of the disputed will, mainly with the testimony of the three attesting witnesses,
Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:

In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo,
went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the
latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo,
was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo
at Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on
the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito
Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale
to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and Cabiluna. Later, Vito
Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him,
dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal
language. The document was then read by Vito Borromeo, who later signed and thumbmarked it
(Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting
witnesses, who, in turn, signed the will and its copies in the presence of Vito Borromeo and of each
other.

Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic priest who was the confessor of
Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946 to
1947, and Vicenta Mañacap, a mid-wife who lived in the testator's house and had served him from
May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to
the effect that at the time of the execution of the will, Vito Borromeo was still strong and could
move around freely with the aid of a cane; that he was still mentally alert and was a man of strong
will; that his right hand was unimpaired and he could write with it unaided; that as a matter of fact
— according to Vicenta Mañacap — he still wrote personal letters to Tomas Borromeo, could eat by
himself and even played the piano.

On the other hand, the oppositors presented several witnesses who testified that the signatures
purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries;
that they were too good and too perfect signatures and, therefore, quite impossible for the
deceased — an ailing man already 82 years old on May 17, 1945 — to write; that he was found
"positive for bacillus leprosy" by Dr. Antonio Garcia as early as 1926 or 1927, having been treated
for it consistently by injections of chaulmoogra oil administered by Dr. Max Borromeo and Dr.
Cornelio Gandionco; that Vito Borromeo's usual signatures during his better days had always been
characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared
and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was
no conceivable reason why they were left out in the will, if any such will had really been made by
him knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness,
Filiberto Leonardo, and was the fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the
instituted heirs; that the third testamentary witness, Eusebio Cabiluna is the real father of Fortunato
Borromeo, another instituted heir, who admittedly grew up and was reared by Vito Borromeo and
his wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third
instituted heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17,
1945, the deceased's leprosy was so far advanced that the fingers of his right hand were already
hardened and atrophied, this making it difficult, if not impossible, for him to write; and that on the
same date, his sense of hearing and his eyesight had been considerably impaired, his eyes being
always watery due to the progress of his leprosy.

The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G.
Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the
deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the
questioned signatures were forgeries. The proponents, however, presented their own handwriting
expert, Martin Ramos, who testified to the contrary.

The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied
the petition for probate, because, in its opinion, they appeared not to be "wholly disinterested
persons" and because of the serious discrepancies in their testimonies with respect to the number of
copies made of the disputed document. The court also found that the physical condition of the
deceased at the time of the execution of the questioned document was such that it was highly
improbable, if not impossible, for him to have affixed his signatures on the documents Exhibits A, E
and K in the spontaneous and excellent manner they appear to have been written. Thus, the court
was also led to believe the testimony of the handwriting experts for oppositors, — adverse to the
genuineness of the signatures of Vito Borromeo on the questioned document — more than that of
the handwriting expert presented by the proponents of the will.

It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not
the evidence of record is sufficient to prove the due execution of the will in question.
1äwphï1.ñët

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are
regarded as the best witnesses in connection with its due execution. It is similarly true, however,
that to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the
case of any other witness, their testimony may be overcome by any competent evidence — direct or
circumstantial (Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).

It is also an appellate practice of long standing in this jurisdiction to accord great weight to the
findings of fact made by the trial court and not to disturb them unless said court had failed to
consider material facts and circumstances or had given undue weight to, or misconstrued the
testimony of particular witnesses, the reason for this being that the trial judge had full opportunity
to hear and observe the conduct and demeanor of the witnesses while testifying and was
consequently in a better position than the reviewing court to determine the question of their
credibility. While this is not applicable to the present case because His Honor, the judge who penned
the appealed decision was not the same judge before whom the evidence of the parties was
presented, it must be stated that, judging from the carefully written decision under review, it was
only after a thorough study of the record that His Honor arrived at the conclusion that the
subscribing witnesses do not appear to be wholly disinterested persons.

On the matter of the number of copies made of the questioned will allegedly signed by the testator
and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and
confused; that a certain stage of his examination, he said that only two  copies of the will were
prepared — the original and one carbon copy — while at another stage he affirmed that he did not
know whether or not there was a duplicate and that all he could say was that he had affixed his
signature three  times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he
really signed six (6) times — twice on the original and twice on each of the two copies. Adding
confusion to the situation is the answer he gave when he was asked if Vito Borromeo also signed
the carbon copy, to which his answer was "I did not see" (Idem., p. 50).

On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that
there were only the original and one carbon copy of the will and that the testator and all the
subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and
218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the
vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of
the questioned will themselves presented three  copies of said will; the original, a carbon duplicate
copy and a carbon triplicate copy, now in the record as Exhibits A, E and K, respectively.
While it is true that the testimony of these subscribing witnesses was given around eight years after
the alleged execution of the questioned will, still we believe that the transaction in which they claim
to have taken an important part is of such character and importance that it can not be a very easy
matter for anyone of them to have a hazy recollection of the number of copies signed by the
testator and by them. Stranger still would it be for them to say something in open contradiction with
the reality on the matter. If, as may be clearly deduced from their testimony — Cabiluna and
Leonardo's — there was only the original and one copy signed by the testator and the subscribing
witnesses, why is it that three  — original and two copies — were really in existence and were
produced in court during the trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by
two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles
Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will,
evidently to show that he is not a completely disinterested witness. The evidence to this effect
appears to have remained unimpeached, although the proponents of the will could have done it by
calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation.

Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing
witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged
execution of the will. This circumstance — apparently trivial — can not be taken lightly because in
view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be
unreasonable to entertain the suspicion that both subscribing witnesses were not wholly
disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was
the notary public before whom the document Exhibit 4-A — which purports to convey to a
partnership controlled by the heirs instituted in the questioned will thirteen parcels of land situated
in the commercial center of Cebu City — was supposedly acknowledged by the testator on the same
date May 17, 1945.

In the light of the foregoing, We can not see our way clear to holding that the trial court erred in
refusing to give full credit to the testimony of the three subscribing witnesses.

It has also been held that the condition and physical appearance of a questioned document
constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances,
may help in determining whether it is genuine or forged. Subscribing witnesses may forget or
exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only
half truths to mislead the court or favor one party to the prejudice of the other. This can not be said
of the condition and physical appearance of the questioned document itself. Both, albeit silently, will
reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this
reason, independently of the conflicting opinions expressed by the handwriting experts called to the
witness stand by the parties, we have carefully examined and considered the physical appearance
and condition of the original and two copies of the questioned will found in the record — particularly
the signatures attributed to the testator — and We have come to the conclusion that the latter could
not have been written by him.

Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a
total of six alleged signatures of the testator. They are all well written along a practically straight
line, without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in
the respects just adverted to, they appear better written than the unquestioned signatures, of
attesting witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged
execution of the will (May 17, 1945) the testator was considerably older and in a much poorer
physical condition than they. According to the evidence, the testator was then a sick man, eighty-
two years old, with the entire left half of his body paralyzed since six years before, while the oldest
attesting witness (Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were
only forty-four and forty-five years old respectively, and were all in good health. Despite the
obviously very poor physical condition of the testator, Leonardo claims that he signed the alleged
will unaided, writing his name thereon slowly but continuously or without interruption, and that, on
the same occasion, he signed his name several times not only on the original of the will and its
copies but also on the original and several copies of the alleged confirmatory sale Exhibit F-1 and on
his residence certificate. Considering all the attendant circumstances, we agree with the lower court
that Vito Borromeo could not have written the questioned signatures.
In view of what has been said heretofore, We find it unnecessary to examine and consider in detail
the conflicting testimony of the handwriting experts presented by the parties: Martin Ramos by the
proponents of the will, to sustain the genuineness of the questioned signatures, and Felipe Logan
and Jose G. Villanueva, by the oppositors, to prove that said signatures are forgeries. We shall limit
ourselves in this connection to quoting with approval the following portion of the appealed decision:

What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his
comparative examination of the questioned and standard signatures of Vito Borromeo, is his
apparent assumption that all the signatures were made by Vito Borromeo under equality or
similarity of circumstances, that is, that in all instances Vito Borromeo had normal use of
both of his hands, — the right and the left. He failed to take into account that when Vito
Borromeo allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the
left portion of his body, including the left hand, was already paralyzed, and Vito Borromeo
was represented to have written his name alone by himself and unaided. Maybe, if he was
previously apprised of those circumstances, he would hesitate to make the conclusion that
those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if
not better than, the signatures of three much younger attesting witnesses, were positively in
the handwriting of the 82-year old, ailing, and paralytic Vito Borromeo. The Court
consequently, finds itself not disposed to adopt his conclusions, but on the contrary is
inclined toward the views of the other two experts witnesses, Felipe Logan and Jose G.
Villanueva.

As stated at the outset, the contested will is claimed to have been signed and thumbmarked  by the
testator. An examination of the thumbmarks, however, readily shows that, as the lower court found,
the same are "glaringly far from being distinct and clear"; that "they are not a possible means of
identification" nor can "they possibly be identified to be those of Vito Borromeo, or for that matter,
of any other person whatsoever". It is, therefore, obvious, that they are of little use in the resolution
of the issue before Us.

We shall now consider the appeal, taken by the oppositors and the Republic of the Philippines from
that portion of the decision where the lower court declined to decide with finality the question of
who owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and
whether or not they should be included in or excluded from the inventory of properties of the Estate
of the deceased Vito Borromeo.

It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through counsel,
filed a motion for the exclusion from the inventory of the Estate of the thirteen lots therein
mentioned, with a total area of 2,348 square meters, claiming that the same had been sold by the
deceased Vito Borromeo during his lifetime to the Cebu Arcade, T. L. Borromeo y Cia. This motion
for exclusion was denied by the lower court in its order of July 16, 1954, and the ruling was
reiterated in the appealed decision "for the same reasons and considerations" upon which it rejected
the probate of the will. The ruling on the matter, however, was expressly made provisional in
nature.

We believe, and so hold, that the resolution of the lower court on this matter is correct because said
court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the
question of ownership involved. That such matter must be litigated in a separate action has been
the established jurisprudence in this jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari
vs. Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29, 1957; Cordova
vs. Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party
merely prays for the inclusion or exclusion from the inventory of any particular property, in which
case the probate court may pass upon provisionally, the question of inclusion or exclusion, but
without prejudice to its final determination in an appropriate separate action (Garcia vs. Garcia, 67
Phil. 353; Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).

In view of all the foregoing, the decision appealed from is affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur

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.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.

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:

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 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.

EN BANC

[G.R. No. L-22621. September 29, 1967.]

JOSE MARIA RAMIREZ, Plaintiff-Appellee, v. JOSE EUGENIO RAMIREZ, RITA D.

RAMIREZ, BELEN T. RAMIREZ, DAVID MARGOLIES, MANUEL UY & SONS, INC., BANK OF
THE PHILIPPINE ISLANDS, in its capacity as judicial administrator of the Testate Estate
of the late Jose Vivencio Ramirez, defendants-appellants, ANGELA M.
BUTTE, Defendant-Appellee.

Sycip, Salazar, Luna & Associates for Plaintiff-Appellee.

Ramirez & Ortigas, for Defendants-Appellants.

SYLLABUS

1. CIVIL LAW; CO-OWNERSHIP PROPERTY; WHERE DIVISION THEREOF IS PROPER. — Where, as

in this case, no evidence was introduced in support of the claim that a physical division of the
property will cause inestimable damage to the interest of the co-owners thereof, a court order
requiring its division was proper.

2. ID.; ID.; ID.; EXPENSES OF DIVISION TO BE DEFRAYED BY PARTIES BENEFITED. — Since the
segregation of the property in question inured to the benefit, not only of plaintiff, but also of
defendants, both parties must defray the incidental expenses.

DECISION

CONCEPCION, C.J.:

Appeal by the defendants from a decision of the Court of First Instance of Manila.

Plaintiff, Jose Maria Ramirez, brought this action 1 against defendants Jose Eugenio Ramirez, Rita D.
Ramirez, Belen T. Ramirez, David Margolies, Manuel Uy & Sons, Inc., the Estate of the late Jose
Vivencio Ramirez, represented by its judicial administrator, the Bank of the Philippine Islands, and
Angela M. Butte — hereinafter referred to collectively as defendants — for the partition of a parcel
of land situated at the Northwestern corner of Escolta street and Plaza Sta. Cruz, Manila —
otherwise known as Lot 1 of Block 2120 of the Cadastral Survey of Manila and more particularly
described in Transfer Certificate of Title No. 53946 of the Register of Deeds for said City — and
belonging pro indiviso to both parties, one sixth (1/6) to the plaintiff and five-sixths (5/6) to the
defendants.

Manuel Uy & Sons expressed its conformity to the partition, "if the same can be done without great
prejudice to the interests of the parties." Defendant Butte agreed to the partition prayed for. The
other defendants objected to the physical partition of the property in question, upon the theory that
said partition is "materially and legally" impossible and "would work great harm and prejudice to the
co-owners." By agreement of the parties the lower Court referred the matter to a Commission
composed of: chanrob1es virtual 1aw library

(1) Delfin Gawaran, Deputy Clerk of said court, as Chairman,

(2) Artemio U. Valencia, President of the Manila Board of Realtors as commissioner for plaintiff, and

(3) Ramon F. Cuervo, President of the Perpetual Investment Corporation, Inc., as commissioner for
defendants.

to determine whether the property is susceptible of partition, and submit a plan therefor, if feasible,
as well as to report thereon. Subsequently, the commissioners submitted their individual reports
with their respective plans for the segregation of plaintiff’s share.

After due hearing, the Court rendered a decision declaring that plaintiff is entitled to the segregation
of his share, and directing that the property be partitioned in accordance with the plan submitted by
commissioner Valencia, and that the expenses incident thereto be paid by both parties
proportionately. Hence, this appeal by the defendants, except Mrs. Butte. Appellants maintain that
the lower court has erred: 1) in holding that said property is legally susceptible of physical division;
2) in accepting the recommendation of commissioner Valencia, instead of that of commissioner
Cuervo, or a proposal made by the very plaintiff; and 3) in not ordering that the incidental expenses
be borne exclusively by him.

We find no merit in the appeal.

With respect to the first alleged error, it is urged that a physical division of the property will cause
"inestimable damage" to the interest of the co-owners. No evidence, however, has been introduced,
or sought to be introduced, in support of this allegation. Moreover, the same is predicated upon the
assumption that a real estate suitable for commercial purposes — such as the one herein sought to
be partitioned — is likely to suffer a proportionately great diminution in value when its area becomes
too small. But, then, if plaintiff’s share of 260.26 square meters were segregated from the property
in question, there would still remain a lot of 1,301.34 square meters for appellants herein and Mrs.
Butte. A real estate of this size, in the very heart of Manila, is not, however, inconsequential, in
comparison to that of the present property of the community. In other words, we do not believe
that its value would be impaired, on account of the segregation of plaintiff’s share, to such an extent
as to warrant the conclusion that the property is indivisible.

Appellants argue that, instead of making the aforementioned segregation, plaintiffs share should be
sold to them. In support of this pretense, they cite the provision of Article 495 of our Civil Code, to
the effect that: jgc:chanrobles.com.ph

". . . Notwithstanding the provisions of the preceding article, the co-owners cannot demand a
physical division of the thing owned in common, when to do so would render it unserviceable for the
use for which it is intended. But the co-ownership may be terminated in accordance with article
498."cralaw virtua1aw library

They apparently assume, once again, that the alleged "inestimable damage" to be suffered by the
property, if plaintiff’s share were segregated, is equivalent to rendering it "unserviceable for the use
for which it is intended." Independently of the fact that the minor premise of this syllogism — the
alleged "inestimable damage" — has not been established, the conclusion drawn by appellants does
not follow necessarily. Indeed, the record shows that there are two (2) buildings on the land in
question, namely: 1) a two-storey commercial building — known as "Sta. Cruz Building" — abutting,
on the one (1) side, 2 on the Escolta, and, on the other, 3 on Plaza Santa Cruz; and 2) a small two-
storey residential building, on the Northwestern end of the lot and behind the first building,
adjoining the Estero de la Reina, which constitutes the Southwestern boundary of the property.
There is nothing to show that, after segregating plaintiff’s share, the buildings left on the remaining
1,301.34 square meters, representing defendants’ share, would be unserviceable, either for
commercial or for residential purposes. On the contrary, it seems obvious that plaintiff would not
insist upon the partition prayed for, if his share 4 were unserviceable for either — particularly the
commercial — purpose. In fact, every one of the aforementioned commissioners, including the one
representing defendants herein, recommended the segregation of plaintiff’s share. The
commissioners merely failed to agree on the precise configuration thereof.

This brings us to the second issue raised by appellants: whether the lower court should have
adopted the plan submitted by their own commissioner, or "in not taking into consideration," at
least, a proposal made by plaintiff herein. In this connection, it appears that said commissioner 5
recommended that plaintiff’s share be given a frontage of 6.14 lineal meters at Plaza Sta. Cruz,
whereas the commissioner for the Court 6 favored a frontage of 12.66 square meters at said Plaza;
that defendants’ main objection to the plan recommended by commissioner Valencia 7 and adopted
by the lower court, is that it left, behind the portion awarded to plaintiff, a lot of 169 square meters,
which would have to be divided among the defendants, should they later wish to have their
individual shares segregated; and that, in order to offset this objection, plaintiff had expressed — in
one of the pre-trials held in the lower court and in order to "facilitate early termination" of the case
— the willingness "to buy from the other co-owners the remaining portion of the land behind his lot
at P1,000 per square meter." cralaw virtua1aw library

The record does not show that this offer of the plaintiff had not been "taken into consideration" by
the lower court. Moreover, defendants had not accepted it. And neither do they accept it now, for
they would want the plaintiff to pay a price higher than that offered by him. Upon the other hand,
the disadvantage resulting to the defendants from the existence of said lot of 169 square meters,
behind that awarded to the plaintiff, is offset by the fact that the remaining portion of the land in
question — representing defendants’ collective shares — has, in addition to a frontage of around 40
meters on Plaza Santa Cruz, a frontage of 24.13 meters on Escolta Street, which apart from being,
admittedly, the most valuable one, is totally denied to the plaintiff. Then, again, the Cuervo plan
giving plaintiff a 6.14 meters frontage of Plaza Sta. Cruz, goes all the way down to the Western end
of the property, the Estero de la Reina, and would require a partition of the residential building, on
that part of the property in question, which the very plaintiff says is indivisible, because it would
render said building "unserviceable for the purpose for which it is intended." 8

As regards the last alleged error, it is obvious that the segregation of plaintiff’s share inures to the
benefit not only to the plaintiff, but, also, of the defendants, and that both should, consequently,
defray the incidental expenses.

WHEREFORE, the decision appealed from is hereby affirmed, with the costs of this instance against
herein defendants-appellants. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

Bengzon, J.P., J., is on leave.

G.R. No. L-19142             March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased.

FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.

Marcaida, Capili and Ocampo for appellant.

Epimaco Molina for appellee.

OSTRAND, J.:

This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is
no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it
may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the
deceased.

In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress
and under undue influence, and that at the time of the execution of the will he was not of sound
and disposing mind.

We do not think the opponent has succeeded in proving any of his allegations. There is no evidence
whatever showing that the testator acted under duress or undue influence and the only question of
fact which we need consider is whether the testator was of sound and disposing mind when the
document in question was executed.

Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He died about eight or nine o'clock in the
evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the
same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously
that coma implies complete unconsciousness, and that the testator, therefore, could not at that time
have been in possession of his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be aroused and have lucid
intervals. Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal
witness, who visited the deceased in the evening of December 25th, says he then seemed to be in a
state of coma and that in the forenoon of December 26th, when the doctor again visited him, he
was in "the same state of coma." Maximina Ong, the wife of the opponent, the only other witness
for the opposition, states that on December 26th the deceased could not talk and did not recognize
anyone. But all the witnesses presented by the petitioner, five in number, testify that the deceased
was conscious, could hear and understand what was said to him and was able to indicate his
desires. Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that
the deceased only moved his head in answer to questions.

That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be no
doubt that he was of sound mind and capable of making his will. And we see no reason to discredit
any of these witnesses; the discrepancies found between their respective versions of what took
place at the execution of the document are comparatively unimportant and so far from weakening
their testimony rather lend strength to it by indicating the absence of any conspiracy among them.

As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The
former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere
professional speculation cannot prevail over the positive statements of five apparently credible
witnesses whose testimony does not in itself seem unreasonable.

There is no direct evidence in the record showing that the publication of the time and place of the
hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in admitting the will to probate
without proof of such publication. This question not having been raised in the court below will not
be considered here.

Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also
provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed
by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr.
N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded.

There is no merit in this contention. When, as in this case, the testimony is taken by the
stenographer of the court and certified to by him, the provision quoted can only be regarded as
directory and a failure to observe the provision will not render the testimony inadmissible. (Reese
vs. Nolan, 99 Ala., 203.)

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

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

G.R. No. L-41947 January 16, 1936

In re Will of the deceased Silvestra Baron.

VIVENCIO CUYUGAN, Petitioner-Appellant, vs. FAUSTINA BARON and GUILLERMO BARON,
oppositors-appellees.

Pedro Abad Santos, Quirino Abad Santos, Francisco M. Ramos, and Aurelio Pineda for appellant.
Arturo Joven for appellee Guillermo Baron.
Vicente J. Francisco and Jesus E. Blanco for appellee Faustina Baron.

BUTTE, J.: chanrobles virtual law library

This is an appeal from a judgment of the Court of First Instance of Pampanga denying all the
petition of Vivencio Cuyugan for the probate of the will of Silvestra
Baron.chanroblesvirtualawlibrary chanrobles virtual law library

The petition which was filed on February 1, 1933, recites among other things that Silvestra
Baron died on January 30, 1933. The death certificate recites that she was eighty-six years of
age and died of heart failure. The petition further recites that she left an estate exceeding in
value the sum of P80,000 which she disposed of by will dated December 17, 1932, that she
died single without forced heirs.chanroblesvirtualawlibrary chanrobles virtual law library
The will appointed Vivencio Cuyugan, her nephew, as executor and contains the following
paragraphs which dispose of her estate:

Que despues de pagados todos los gastos quese han de ocasioner desde que me caiga enferma
hasta el entiero de mi cadaver, los bienes y propiedades que he de dejar se repartiran
buenamente y en partes iguales mis hermanos Ilamados Guillermo Baron, con exception de
todo el dinero en metalico y mi casa de materiales fuertes construida en el barrio del Pilar, San
Fernando, Pampanga que actualmente habita mi hermano Guillermo Baron, porque estos los
doy de una manera absoluta como herencia de mi sobrino Vivencio
Cuyugan.chanroblesvirtualawlibrary chanrobles virtual law library

Que a la muerte de mis hermanos Guillermo y Faustina Baron, todos los terrenos que en virtud
de este test tamento les dejo en herencia, los doy herencia a mi so brino VIVENCIO CUYUGAN,
por lo que, encargo y prohibo a mis citados hermanos Guillermo y Faustina Baron, que graven o
pongan cualquiera clase de obligacion sobre los bienes que les dejo en herencia.

The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron" (t.s.n. pp.
170, 171). Both copies are written in the Pampanga dialect and consist of one sheet and are
witnessed in due form by Vicente David, Valeriano Silva and Zacarias Nuguid (known to the
testator).chanroblesvirtualawlibrary chanrobles virtual law library

The petition for probate recites:

9. That on the date of the execution of said will, that is to say, on December 17, 1932, the said
testatrix was about 80 years old, more or less, and was found and disposing mind, and not
acting under duress, menace, fraud, or undue influence, and was in every respect competent to
dispose of her estate by will.

The amended oppositions of Guillermo Baron, brother of the deceased, and Faustina Baron,
sister of the deceased, allege in substance first, that at the time of the execution of the alleged
will, Silvestra Baron was mentally and physically incapacitated for the execution of a will; and,
second, that her signature and alleged consent to the said will was obtained and the attorney
who prepared the document and the witnesses who affixed their signatures
thereto.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the issues thus drawn by the pleadings of the judge of the Court of First Instance, after
and extended trial and a full consideration of the evidence, came to the following conclusion:

Opinamos que influyeron indebidamente e impropia mente en la voluntad ya debilitada de

do�a Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y
Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron impedida
de presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia Municipal, Zacarias
Nuguid; la oposicion de Regino Cuyugan a que ella firmase el documento preparado por el
abogado Narciso declarando que no habia otorgado testamento el dia anterior a su translado
forzoso a San Fernando para que no se hisciese firmar documento analogo y la presencia del
cabo Morales y del algunos otros soldados, no solamente cuando se otorgo el testamento, sino
cuando ella fue transladada de casa contra su voluntad y cuando se le hizo firmar el Exhibit 10,
y por lo tanto, que ella no gozo de una completa libertad para disponer de sus bienes en
testamento, o con pleno conocimiento del alcance de su contendido. Solo asi se explica el que
ella haya dejado toda la propiedad de sus bienes a sus sobrinos, con quienes habia estado en
pleito, con pretericion de sus hermanos, especialmente de la opositora Faustina Baron, con
quien habia conviviendo durante 40 a�os . . . .chanroblesvirtualawlibrary chanrobles virtual law
library

Sentadas las premisas de hecho y de derecho que an teceden, el Juzgado no puede menos de
llegar a la con ser legalizado como el testamento y ultima voluntad de la finada Silvestra Baron.
Cuando existen pruebas suficien tes para concencer al Juzgado de que se ha ejercido in fluencia
indebida en el animo de la testadora y que como resultado de dicha influencia indebida esta ha
otorgado el testamento de la voluntad de la supuesta testadora sino de los que sobre ella
ejercieron la influencia indebida.

An instrument purporting to be a will executed and witnessed in accordance with the formalities
required by the statute is entitled to the presumption of regularity. But the burden of the
evidence passed to the proponent when the oppositors submit credible evidence tending to
show that the supposed testator did not possess testamentary capacity at the time or that the
document was not the free and voluntary expression of the alleged testator or that the will, for
any other reason, is void in law. The finding that the will was executed under due influence or
by the fraud of another presupposes testamentary capacity. In the present case the learned
trial judge refused the probate of the alleged will on the ground that it was executed under the
due influence of other persons and we think the record warrants his findings in this respect.
The trial court also made findings of fact tending to show actual lack of testamentary capacity
of Silvestra Baron and we have preferred to base our conclusion on that finding. The
testamentary capacity of Silvestra Baron at the time she executed the said purported
will.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were
immediately called in. By reason of her advanced age and the gravity of her illness, she was
unable to do anything for herself. Her grandniece, Epifania Sampang, who reached the house
about one hour or so after the old lady's collapse, telephoned a message to Vivencio Cuyugan
at San Fernando, some fourteen kilometers distant, that Silvestra had an attack and was in a
serious condition and requested that a doctor be sent immediately, Doctor Teopaco and a nurse
arrived at about ten o'clock and treated the patient with a plaster on her back and ice packs
over her heart and the doctor gave her a hypodermic injection in the arm. As the doctor and
the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the
house prepared to obtain the will of Silvestra Baron. Neither the doctor nor the nurse were
presented as witnesses by the proponent. Epifania Sampang, admittedly an intelligent young
woman, who was the first to reach Silvestra Baron and remained throughout the morning
attended to her, testified that when she reached the house she found her grandaunt lying in
bed, very pale and unconscious; that she called to her but she did not answer and only
groaned; that her mouth was twisted and her lower lip swollen. She went out to call a doctor
but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando
for a doctor.chanroblesvirtualawlibrary chanrobles virtual law library

The subscribing witnesses stated that it was their belief that Silvestra understood the alleged
will which she signed, but all of them admitted that although they were in her house about two
hours not one of them exchanged a single word of conversation with Silvestra. The subscribing
witness Zacarias Nuguid testified in part as follows:

P. Desde que los tres abogados Abad Santos, Silva y David y usted y Vivencio Cuyugan se
acercaron a la cama de la finada, hasta que tanto ella como usteded firmaron el testamento, ha
pronunciado ella alguna palabra? ha dicho ella algo o no? - R. No
recuerdo.chanroblesvirtualawlibrary chanrobles virtual law library

P. Pero, por lo que usted recuerda, ha dicho ella algo o no ha dicho nada? - R. No
recuerdo.chanroblesvirtualawlibrary chanrobles virtual law library

P. Usted ha dicho algo a ella? - R. Nada.chanroblesvirtualawlibrary chanrobles virtual law library

P. El se�or Quirino Abad Santos le ha dicho algo a ella? - R. Nada. No he

oido.chanroblesvirtualawlibrary chanrobles virtual law library

P. Los otros abogados Silva y David le han dicho algo ? - R. No he

oido.chanroblesvirtualawlibrary chanrobles virtual law library

P. Ella ha dicho algo a cualquiera de osos tres o a los abogados? - R. No he oido que dijera
algo.chanroblesvirtualawlibrary chanrobles virtual law library
P. Si ella hubiese dicho algo a los abogados, asi como los abogados hubieran hablado a ella,
usted hubiera oido porque usted estaba cerca, no es verdad? - R. Si se�or, hubiera podido
oir.chanroblesvirtualawlibrary chanrobles virtual law library

P. Cuando el senor Silva termino de leer el testamento, dijo algo la vieja? - R. No he oido que
dijera algo.

There is no evidence that Silvestra Baron took any active part in the preparation of the alleged
will except that when she was asked if she wished to include her sister Faustina in the will she
said "Yes" in Pampanga. There is no affirmative evidence that she understood the document
when it was read to her. The person who read the will to her testified as follows:

R. Despues de leido el testamento, tuve que entregarlo a do�a Silvestra, y lo miro algun
rato.chanroblesvirtualawlibrary chanrobles virtual law library

P. Y ella, efectivamente, cogio el testamento de manos de usted? - R. Lo entregue a sus

manos.chanroblesvirtualawlibrary chanrobles virtual law library

P. Y ella lo cogio con sus manos? - R. Si se�or.chanroblesvirtualawlibrary chanrobles virtual

law library

P. Y lo tuvo en sus manos leyendo, mirando? - R. Mirandolo asi.chanroblesvirtualawlibrary

chanrobles virtual law library

P. Pero, no lo leia? - R. Lo estuvo mirando por mucho tiempo asi.

Standing at her bedside was the attorney with three witnesses and the chief beneficiary,
Vivencio Cuyugan, and yet so far as this record shows, not a word was exchanged between any
of them and the suffering old woman. We don't know what drug the doctor administered but it
is clear to us from the evidence that in her dazed physical and mental condition she had no
adequate understanding of what she was doing at that time. She could not even sign her name
to the original will properly or correctly, and when this defect was noted by one of the astute
subscribing witnesses, he suggested that they have her sign another copy (t.s.n. page 109)
which was done.chanroblesvirtualawlibrary chanrobles virtual law library

She never saw the alleged will at any time again prior to her death which occurred forty-four
days later. It was immediately taken away by an attorney who kept it in his possession alleging
that she had instructed him to keep it secret. There is, however, credible evidence in the record
that before her death she had denied to several persons that she made any
will.chanroblesvirtualawlibrary chanrobles virtual law library

This belief on her part that she had not made any will explains her failure to do any act of
revocation in the forty-four days during which she lingered in this life. The doctrine that where
the testator has had an opportunity to revoke his will subsequent to the operation of an alleged
undue influence upon him but makes no change in it, the courts will consider this fact as
weighing heavily against the testimony of undue influence, has no application to cases in which
there has been an initial lack of testamentary capacity. It has no application, moreover, where
from the day of execution until the death of the testator his mental condition is such that he
cannot judge the propriety of revoking the will. Nor obviously does it apply to a case where the
alleged testator harbors the belief that he had not executed the will in
question.chanroblesvirtualawlibrary chanrobles virtual law library

In view of the premises, the judgment appealed from is affirmed with costs against the
appellant.

Hull and Imperial, JJ., concur.

Separate Opinions

MALCOLM, J., concurring:chanrobles virtual law library

The main issue in this case, as I see it, is whether or not Silvestra Baron, a woman of advanced
years and in a critical state of health, possesses testamentary capacity to make a will. This was
an issue of fact, and resolving it the trial judge reached the conclusion that the testatrix was not
of disposing mind. My review of the evidence does not permit me to say that in thus deciding
the trial judge was wrong. As was expected, in a case of this character, the oral testimony was
conflicting, but in resolving the credibility of the witnesses, a judge as experienced as Judge
Hermogenes Reyes was in a much better position to do so than we are. However, I may state
that I have been considerably influenced by the testimony of the parish priest, certainly a
disinterested party, who stated on the witness stand that in response to his question if she had
made a will, Silvestra Baron answered: "There is no will, Father." But from the premise of lack
of testamentary capacity, it does not necessarily follow that anything of an unprofessional
nature should be imputed to the lawyer who prepared the will and the other lawyers who acted
as attesting witnesses. The first named is the justice of the peace of San Fernando, Pampanga,
and has an excellent reputation, which is not lessened in the least by his acts in this case, and
the last named are reputable members of the bar.chanroblesvirtualawlibrary chanrobles virtual
law library

For these reasons and to this extent, I concur.

Vickers, and Recto, J., concur.

VILLA-REAL, J., dissenting:chanrobles virtual law library

The lower court refused to probate the will of Silvestra Baron on the ground that when she
executed it she was under the undue influence of other persons; but the majority of this court,
while admitting the existence of such undue influence, prefers to base its refusal on the ground
that she lacked testamentary capacity at the time of the execution of said
will.chanroblesvirtualawlibrary chanrobles virtual law library

The facts constituting the undue influence in the opinion of the lower court are summarized in
its decision as follows:

Opinamos que influyeron indebitamente e impropiamente en al voluntad ya debilitada de do�a

Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan y Regino
Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron impedida de
presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia Municipal, Zacarias
Nuguid; la oposicion de Regino Cuyugan a que ella firmase el documento preparado por el
abogado Narciso declarando que no habia otorgado testamento el dia anterior a su translado
forzoso a San Fernando para que no se hiciese firmar documento analogo y la presencia del
cabo Morales y de algunos otros soldados, no solamente cuando se otorgo el testamento, sino
cuando se le hizo firmar el Exhibit 10, y, por lo tanto, que ella no gozo de una completa libertad
para disponer de sus bienes en testamento, o con pleno conocimiento del alcance de su
contenido. Solo asi se explica el que ella haya dejado toda la propiedad de sus bienes a sus
sobrinos, con quienes habia estado en pleito, con pretericion de sus hermanos, especialmente
de la opositora Faustina Baron, con quien habia estado conviviendo durante 40 a�os . . ..

And the facts constituting lack of testamentary capacity are condensed in the opinion of the
majority as follows:

The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were
immediately called in. By reason of her advanced age and the gravity of her illness, she was
unable to do anything for herself. Her grandniece, Epifania Sampang, who reached the house
about an hour or so after the old lady's collapse, telephoned a message to Vivencio Cuyugan at
San Fernando, some fourteen kilometers distant, that Silvestra had had an attack and was in a
serious condition and requested that a doctor be sent immediately. Doctor Teopaco and a nurse
arrived at about ten o'clock and treated the patient with a plaster on her back and ice packs
over her heart and the doctor gave her a hypodermic injection in the arm. As the doctor and
the nurse were leaving, Vivencio Cuyugan, with an attorney and three witnesses, entered the
house prepared to obtain the will of Silvestra Baron. Neither the doctor nor the nurse were
presented as witnesses by the proponent. Epifania Sampang, admittedly an intelligent young
woman, who was the first to reach Silvestra Baron and remained throughout the morning and
attended to her, testified that when she reached the house she found her grandaunt lying in
the bed, very pale and unconscious; that she called to her but she did not answer and only
groaned; that her mouth was twisted and her lower lip swollen. She went out to call a doctor
but all the doctors in Magalang were out whereupon she telephoned as stated to San Fernando
for a doctor.

Examining now the facts which according to the findings of the lower court constituted undue
influence, we have in the first place the presence of the testatrix nephews Regino Cuyugan and
Vivencio Cuyugan. There was nothing either in the presence of Vivencio Cuyugan or of that of
Regino Cuyugan which could have compelled Silvestra Baron to make Vivencio Cuyugan her
most favored beneficiary in her will. There is certainly nothing ill in nephews being present at
the making of a will. The evidence shows that these two Cuyugans just stood by while the will
was being read to the testatrix and when it was presented to her for her
signature.chanroblesvirtualawlibrary chanrobles virtual law library

The absence of Faustina Baron, - the sister of Silvestra Baron, in whose company the latter was
living, - who, according to the witnesses for the opponents, but denied by the witnesses for the
proponent, while the will was being made, was prevented to come into the house by some
Constabulary soldiers and the chief of police of San Fernando, Pampanga, Zacarias Nuguid, is
another fact mentioned by the lower court as constituting undue influence. Even granting that
Faustina Baron was prevented to come to the house while Silvestra Baron was making her will,
I fail to see how such act on the part of the Constabulary soldiers could have unduly influenced
the testatrix in the making of her will.chanroblesvirtualawlibrary chanrobles virtual law library

The presence of some Constabulary soldiers outside the house and in the kitchen is also one of
the reasons which led the lower court to conclude that undue influence was used in making
Silvestra Baron sign her will. Silvestra Baron was not an ignorant old lady. She was a landed
proprietress, who according to the custom prevailing in the Philippine Islands, managed her
won property, and in o doing she had to deal with many farm laborers in such a way as to
make them respect her. The presence of Constabulary soldiers in towns and barrios is not a
rare occurrence, and country people are accustomed to seeing them around whether on patrol
or quarantine duty. There is, therefore, nothing in the mere presence of the Constabulary
soldiers in the house of Silvestra Baron at the time of making her will which could have
influenced her. Besides, the testatrix must have known the presence of such soldiers before she
collapsed, because they had been there investigating the assault and robbery committed
against her a few days before. There is no evidence that said soldiers were brought to the
house for the purpose of guarding the making of the will.chanroblesvirtualawlibrary chanrobles
virtual law library

The fact that the chief of police of San Fernando, Zacarias Nuguid, was brought by Attorney
Quirino Abad Santos, whom the old lady had requested to prepare her will, had no more
significance than the bringing of the other attorneys to witnesses to the will. There is certainly
no evil in making a chief of police a witness to a will, nor is there any law disqualifying him to
be such witness.chanroblesvirtualawlibrary chanrobles virtual law library

The alleged attitude of Regino Cuyugan in trying to prevent her aunt Silvestra Baron on
December 18, 1932, the day following the making of her will, to sign a document prepared by
Attorney Jose A. Narciso revoking her said will, even if it were true, could in no way have
influenced her in the making of said will which took place the day
previous.chanroblesvirtualawlibrary chanrobles virtual law library
The lower court also found that the will of Silvestra Baron was weakened by old age. In this
connection I prefer to reproduce here what is said in 68 Corpus Juris, 440-442:

Old age. - A person possessing the requisites of testamentary capacity is not incapacitated from
making a will by old age, although his advanced years to be accompanied by infirmity of mind
and body. Nor is he incapacitated by failing a memory, vacillating judgment, childishness,
slovenliness in dress, eccentricities or peculiarities in habit or speech, and even delusions or
hallucinations if they do not affect the execution of the will, and he is not limited to
conventional methods of disposition. The will is not valid where an aged person is so enfeebled
mentally as not to understand what he is doing.

If undue influence had been used to compel Silvestra Baron to make the will on the 17th of
December, 1932, she could have changed her said will after all the circumstances which
according to the court below constituted said undue influence had disappeared. After the
making of her will Silvestra Baron was left alone in her house in the company of her nephew
Regino Cuyugan, her grandniece Epifania Sampang and her sister Faustina Baron. Upon gaining
access to the house and learning that her sister Silvestra Baron had signed some papers,
Faustina Baron started immediately to look for Attorney Jose A. Narciso, and with him went to
the house of Attorney Valeriano Silva who upon being questioned informed the latter that the
old lady had signed a will. Thereupon efforts were made to have the will revoked, and to this
effect Attorney Jose A. Narciso prepared a document which the old lady refused to sign as we
have already stated. On the 20th of December, 1932, the old lady was taken by her brother
Guillermo Baron, one of the opponents, to her own house in San Fernando, Pampanga,
occupied by said Guillermo, and there she stayed for forty days before her death. During that
time she signed on two different occasions two documents, one ratifying the making of her will
and the other appointing her nephew Vivencio Cuyugan her attorney in fact. An old lady who
after making her will remains in the house of her sister, free from any outside influence, refuses
to sign a document purporting to be a revocation of her will, lives for forty days in her own
house in San Fernando, Pampanga, in the company of her brother, and there signs two
important documents, cannot certainly be said to have been unduly influenced when the made
her will.chanroblesvirtualawlibrary chanrobles virtual law library

In Brownlie vs. Brownlie (93 A.L.R., 1048), the Supreme Court of Illinois said the following:

. . . The undue influence which will invalidate a will must be directly connected with the
execution of the instrument, be operating when the will was made, and thereby prevent the
testator from exercising his own wish and will in the disposition of his estate. (Flanigon vs.
Smith, 337 Ill., 572; 169 N.E., 767; Chaney vs. Baker, 304 Ill., 362; 136, N.E., 804; Goff vs.
Gerhart, 316 Ill., 513; 147 N.E., 419; McGrady vs. McGrady, 298 Ill., 129; 131 N.E., 251.) The
fact that the beneficiaries of a will are those by whom the testator was surrounded and with
whom he stood in confidential relationship at the time of executing his will is no ground for
inferring undue influence. (Michael vs. Marshall, 201 Ill., 70; 66 N.E., 273; Rutherford vs.
Morris, 77 Ill., 397.) The influence must be directed towards procuring the will in favor of
certain parties and must be such as to destroy the testator's freedom of will and purpose. (Pond
vs. Hollett, 310 Ill., 31; 141 N.E., 403; Gregory vs. Richey, 307 Ill., 219; 138 N.E., 669;
Blackhurst vs. James, 304 Ill., 219; 136 N. E., 754, Snell vs. Weldon, 239 Ill., 279; 87 N.E.,
1022.) Proof of undue influence must be consistent with the exercise of undue influence and
also be inconsistent with its absence. (Cunningham vs. Dorwart, supra; Compher vs. Browning,
219 Ill., 429; 76 N.E., 678; 109 Am. St. Rep., 346.)

In the case of Torres and Lopez de Bueno vs. Lopez (48 Phil., 772), this court in an opinion
written by Justice Malcolm, defines undue influence as follows:

Undue influence as used in connection with the law of wills, may be defined as that which
compels the testator to do that which is against the will from fear, the desire of peace, or from
other feeling which he is unable to resist.

In Applehans vs. Jurgenson (67 A.L.R., 857), the Supreme Court of Illinois said:
The undue influence which will avoid a will must be directly connected with the execution of the
instrument and operate at the time it is made. The influence must be specially directed toward
procuring the will in favor of a particular party or parties, and it must be such as to destroy the
freedom of the testator's will and render the instrument obviously more the offspring of the will
of another or others that of his own. (Ughetti vs. Ughetti, 334 Ill., 398; 166 N.E., 90; Ray vs.
Koenigsmarck, 329 Ill., 588; 161 N.E., 124; Farmer vs. Davis, 289 Ill., 392; 124 N.E., 640; Hurd
vs. Reed, 260 Ill., 154; 102 N.E., 1048; Larabee vs. Larabee, 240 Ill., 576; 88 N.E., 1037; Snell
vs. Weldon, 239 Ill., 279; 87 N.E., N.E., 1022; Wickes vs. Walden, 228 Ill., 56; 81 N.E., 798;
Woodman vs. Illinois Trust & Sav. Bank, 211 Ill., 578; 71 N.E., 1099; Roe vs. Taylor, 45 Ill.,
485.) The evidence failed to establish these requirements. The law does not require that a
testator, in making disposition of his property, shall be humane or even just. If he possesses
the requisite mental capacity, he has the right to make an unequal distribution of his property
among his heirs or to give it entirely to strangers. (McGrady vs. McGrady, 298 Ill., 129; 131
N.E., 251.)

We have seen that none of the facts which the lower court found to constitute undue influence
is such as to cause fear, desire of peace, or any other feeling which Silvestra Baron was unable
to resist.chanroblesvirtualawlibrary chanrobles virtual law library

As to the effect of an opportunity of revocation upon an alleged undue influence, we read in 28

R.C.L., 151, the following rule:

106. Opportunity of revocation. - Where the testator has had an opportunity to revoke his will
subsequent to the operation of an alleged undue influence upon him, but makes no change in
it, the court as a general rule considers the effect of the testimony of the undue influence as
destroyed.

From the foregoing definition of undue influence, and the existence of an opportunity to revoke
without taking advantage of it, I come to the conclusion that when Silvestra Baron signed her
will she was not under any undue influence, and that if she had ever been in such during the
forty days which she survived the making of said will. The fact that not only she had not done
so but that she made a power of attorney in favor of her nephew Vivencio Cuyugan, the chief
beneficiary under her will, and ratified the making of said will, is conclusive proof that no undue
influence had been exerted to compel her to sign her will.chanroblesvirtualawlibrary chanrobles
virtual law library

Another fact which led the trial court to conclude that undue influence was exercised upon
Silvestra Baron is that in her will she left most of her property to her nephews leaving nothing
to her brother and sister Faustina Baron except a life usufruct.chanroblesvirtualawlibrary
chanrobles virtual law library

In the case of Pecson vs. Coronel (45 Phil., 216), this court said the following:

Although family ties in this country are very strongly knit, the exclusion of relatives, who are not
forced heirs, from the inheritance is not an exceptional case. The inhabitants of the Archipelago
do not appear to be averse to the freedom to make a will enshrined by article 783 of the Civil
Code, which has been in force in the Philippines since the year 1889. But even if the
appointment of a beneficiary do not seem to be the most usual and ordinary because the
beneficiary is not a relative of the testatrix who has relatives by blood, this alone will not render
the appointment void per se.

In 68 Corpus Juris, 452, we read the following:

The fact that a will may be unnatural, unfair, or unjust creates of itself no presumption that the
testator was incompetent at the time of its execution. No presumption of mental incapacity
arises from the fact that the will makes an unequal distribution of property among the next of
kin, or that it gives property to persons other than the natural objects of the testator's bounty.
Any departure form the usual course in which a person prompted by ordinary instincts and
natural impulses would have his property go is presumed to have been made by the testator
because of reasons rationally conceived which were satisfactory to him, and on the probate of a
will the fact the will is unnatural does not shift the burden to the proponent. According to some
decisions, however, where a will is an unnatural one it is the duty of the proponent on the
probate of the will to give some reasonable explanation of its unnatural character.

In the present case there is evidence to the effect that Silvestra Baron trusted her nephews,
specially Vivencio Cuyugan, more than her brother Guillermo Baron and her sister Faustina
Baron. Faustina Baron herself testified that after the assault and robber on December 9, 1932,
Silvestra Baron entrusted to her nephews Ventura Cuyugan and Vivencio Cuyugan the
combination of the safe where she kept her valuables and documents and gave them the
duplicates of the keys to the interior compartments and drawers (pp. 254, 255, t.s.n.). That
Silvestra Baron did not trust her sister Faustina Baron may be inferred from the latter's own
testimony on page 291 (t.s.n.) to the effect that before the 17th of December, 1932, she did
not dare to suggests to her sister Silvestra Baron to make a will because the latter did not like
to hear anything about the matter, but she told Faustina that she had already made her will
long time ago. If to this we add the fact that a complaint was signed by Silvestra Baron against
her sister Faustina and the latter's son Emilio Lacson for the assault and robbery committed
against her, then we have a full explanation why in her will Silvestra Baron bequeathed to her
nephews almost all her property leaving to her brother and sister nothing but a life
usufruct.chanroblesvirtualawlibrary chanrobles virtual law library

Passing now to the question of lack of testamentary capacity or disposing mind, which is the
ground preferred by the majority opinion on which to base its rejection of the probate of the
said will, we find in the first place the alleged failure of the proponent to call as witnesses the
doctor and the nurse who attended Silvestra Baron immediately after she collapsed, apparently
inferring that had they testified their testimony would have been unfavorable to the claim of
sanity. The burden of proving sanity, which falls on the shoulders of the proponent of a will,
was discharged by Vivencio Cuyugan when he put to the witness stand Attorney Quirino Abad
Santos, the drawer of the will, and attorneys Vicente T. David and Valeriano Silva, and the chief
of police of San Fernando, Pampanga, Zacarias Nuguid, the three witnesses who signed the
will. They testified unanimously that when testatrix signed her will she was of sound mind,
judging from her appearance and the manner she signed it. "An attesting witness to a will may
base an opinion of the testator's mental capacity upon his appearance at the time of executing
the will. (Brownlie vs. Brownlie, 93 A.L.R., 1041.) This testimony was sufficient to make and did
make a prima facie case, (68 Corpus Juris, 450), and the burden of going forward to show
testamentary incapacity having shifted to the contestants (68 Corpus Juris, 451). It was not
therefore the duty of the proponent to call the doctor and the nurse who attended Silvestra
Baron when she collapsed to show that she was of sound mind but of the contestants to show
incapacity.chanroblesvirtualawlibrary chanrobles virtual law library

That Silvestra Baron did not become unconscious as the result of her fall is shown by the very
testimony of Epifania Sampang who said, referring to her grandaunt: "Estaba inconsciente,
lanzaba quejidos, decia: 'Faustina, Faustina'; mandaba buscar a la vieja Faustina." If the
testatrix was really unconscious as the result of said fall she would not have been able to call
her sister Faustina by her name, nor could she have given orders to locate her. Because her
grandaunt did not answer her when she called her, Epifania Sampang imagined that she was
unconscious. Thus, all the evidence concerning the unconscious state of Silvestra Baron in the
morning she made her will consisted of the testimony of Epifania Sampang alone. The doctor
who attended Silvestra Baron after her fall was the one qualified to testify as to her mental
condition and not her grandniece. The contestants whose duty it was to call said doctor to
prove unconsciousness failed to do so.chanroblesvirtualawlibrary chanrobles virtual law library

In the case of Torres and Lopez de Bueno vs. Lopez, supra, this court said:

On January 3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years old,
physically decrepit, weak of intellect, suffering from a loss of memory, had a guardian of his
person and his property, and was eccentric, but he still possessed that spark of reason and of
life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." Two of the subscribing
witnesses testified clearly to the regular manner in which the will was executed, and one did
not. The attending physician and three other doctors who were present at the execution of the
will expressed opinions entirely favorable to the capacity of the testator. Three other members
of the medical profession expressed opinions entirely unfavorable to the capacity of the testator
and certified he was of unsound mind. Held: That Tomas Rodriguez on January 3, 1924,
possessed sufficient mentality to make a will which would meet the legal test regarding
testamentary capacity; that the proponents of the will have carried successfully the burden of
proof and have shown him of sound mind on that date; and that it was reversible error on the
part of the trial court not to admit his will to probate.

While it is true that in the present case no physician testified as to the condition of Silvestra
Baron's mind when she signed her will, we have however the testimony of three reputable
attorneys to the effect that judging from her appearance and the ways she acted when she
signed her will she was of sound mind. This was corroborated by the fact that when the next
day Attorney Jose A. Narciso, upon learning that she had made a will, he tried to make her
revoked said will which she refused. This in itself is an admission that she was of sound
disposing mind. The very finding of the lower court that Silvestra Baron was unduly influenced
in the making of her will is an implied admission that she possessed testamentary
capacity.chanroblesvirtualawlibrary chanrobles virtual law library

The preponderance of evidence and the implied admission of the lower court show, therefore,
the when Silvestra Baron made her will she was of sound disposing
mind.chanroblesvirtualawlibrary chanrobles virtual law library

From all the foregoing considerations, I come to the conclusion that Silvestra Baron made her
will free from any undue influence and in a sound disposing mind, and, therefore, said will
should be probated.

EN BANC

[G.R. Nos. L-3272-73. November 29, 1951.]

MANUEL GONZALES, Petitioner-Appellant, v. MANOLITA GONZALES DE CARUNGCONG,

petitioner-appellee; ALEJANDRO GONZALES, JR., and JUAN GONZALES, Oppositors-
Appellants.

Claro M. Recto, for Petitioner-Appellant.

Reyes, Albert, Agcaoili and Raf. L. Arcega, for Petitioner-Appellee.

Emiliano Pamintuan and Felixberto M. Serrano, for oppositors-appellants.

SYLLABUS

1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES,

SUBSTANTIALLY COMPLIES WITH LAW. — An attestation clause made by the testator himself more
than by the instrumental witnesses, but signed by the latter right under the signature of the
testator, substantially complies with the requirements of law.

2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN
CONSIDERED IN CONNECTION WITH ATTESTATION CLAUSE. — The statement in the penultimate
paragraph of the will as to the number of the sheets or pages used is sufficient attestation which
may be considered in conjunction with the last paragraph which was herein held as the attestation
clause. The law does not require the attestation to be contained in a single clause.

3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT

OF TESTAMENTARY WITNESSES. — Where the family physician attended the testatrix during her
last illness and saw her on the day when the alleged document of revocation was executed, the
testimony of the attesting witnesses tending to imply that the testatrix was of sound mind at the
time said document was executed, cannot prevail over the contrary testimony of the attending
physician.
 DECISION

PARAS, C.J.  :

On November 27, 1948, Manuela Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix)
died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Jr.,
Manuel Gonzales, Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The
estate left by her is estimated at P150,000.

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition
(Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on
November 16, 1942 (Exhibit B — Manuel Gonzales), devising to Manuel Gonzales the greater portion
of the estate, without impairing the legitimes of the other children.

On December 31, 1948, Manolita G. de Carungcong died in the same court a petition (Special
Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945
(Exhibit 1 — Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the
estate, without impairing the legitimes of the other children.

In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the
wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity,
they had been revoked by the testatrix in an instrument executed by her on November 18, 1948
(Exhibit 2 — Alejandro and Juan Gonzales), with the result that her estate should be distributed as if
she died intestate.

With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to
one or the other instruments tending to negative their respective positions. After a joint hearing, the
Court of First Instance of Rizal rendered a decision with the following dispositive pronouncements: jgc:chanrobles.com.ph

"All facts considered in the light of the evidence presented and in the manner in which the witnesses
testified the court concludes and holds: jgc:chanrobles.com.ph

"First: That Exhibit B — Manuel Gonzales, though validity executed on November 16, 1942, was
revoked by Exhibit 1 — Manolita G. Carungcong in accordance with the provisions of section 623 of
the Code of Civil Procedure.

"Second: That Exhibit 2 — Alejandro and Juan Gonzales being executed without the knowledge and
testamentary capacity of the testatrix and being contrary to the provisions of section 618 of the
Code of Civil Procedure, the said document is hereby declared null and void.

"Third: That Exhibit 1 — Manolita G. Carungcong having been executed in accordance with law the
same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra
Viuda de Gonzales, and said will is hereby admitted probate." cralaw virtua1aw library

From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan
Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay
the proportionate share of the printing cost of the record on appeal.

In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of
the following form and tenor: jgc:chanrobles.com.ph

"IKALABING-DALAWA. Na ang aking Huling BILIN AT TESTAMENTONG ito ay binubuo ng PITONG

(7) dahon o pagina na may bilang na sunod-sunod at ang bawa’t dahon o pagina ay mayroong
tunay kong lagda o firma, gayon din ang lahat ñg aking saksi o testigos.

"SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite, Filipinas
ñgayong ika-5 ñg Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong
saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa’t dahon
o pagina nitong testamento kong ito sa harap ng lahat at bawa’t isang saksi o testigos at ang lahat
at bawa’t isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at
sa harap ng lahat at bawa’t isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o
nagsi-firma sa tagilirang kaliwa ng lahat at bawa’t isa sa mga dahon o pagina nitong aking
testamento.

" (Sgd.) MANUELA Y. VDA. DE GONZALES

MANUELA IBARRA VDA. DE GONZALES

"Mga Saksi o Testigos:

" (Sgd.) BIENVENIDO DE LOS REYES

"(Sgd.) TAHIMIK T. SAYOC

"(Sgd.) LUIS GAERLAN"

It is contended for the appellants that this will does not contain any attestation clause; that,
assuming the concluding paragraph to be the attestation clause, it is not valid because it is the act
of the testatrix and not of the witnesses, and because it does not state the number of sheets or
pages of the will.

In the very recent case of Valentina Cuevas v. Pilar Achacoso, G. R. No. L-3497, decided May, 1951
* we sustained, finding a precedent in Aldaba v. Roque, 43 Phil., 378, an attestation clause made by
the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held: jgc:chanrobles.com.ph

"The clause above quoted is the attestation clause referred to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we did is that it appears to
be an attestation made by the testator himself more than by the instrumental witnesses. This
apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of
the will, it appearing that right under the signature of the testator, there appear the signatures of
the three instrumental witnesses.

"‘Instrumental witness, as defined by Escriche in his Diccionario Razonada de Legislacion, y

Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing"
(in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely
attest to the signature of the testator but also to the proper execution of the will. The fact that the
three instrumental witnesses have signed the will immediately under the signature of the testator,
shows that they have in fact attested not only to the genuineness of his signature but also to the
due execution of the will as embodied in the attestation clause.

"The attestation clause in question bears also similarity with the attestation clause in the will
involved in Aldaba v. Roque, (43 Phil, 378). In that case, the attestation clause formed part of the
body of the will and its recital was made by the testatrix herself and was signed by her and by the
three instrumental witnesses. In upholding the validity of the will, the court said: jgc:chanrobles.com.ph

"‘In reality, it appears that it is the testatrix who makes the declaration about the points in the last
paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said
declaration, we are of the opinion and so hold that the words above quoted of the testament
constitute a sufficient compliance with the requirements of Act No. 2645’." cralaw virtua1aw library

Of course three of the Justices of this Court concurred in the result, "in the possibility that the
testator in the present case, or the person or persons who prepared the will had relied upon the
ruling laid down in the case of Aldaba v. Roque, supra, and that it would now be unfair to reject the
present will when in its preparation a ruling of this Court has been followed." But the case at bar still
falls within this view, the will (Exhibit 1 — Manolita G. Carungcong) having been executed on May 5,
1945.

The attestation clause contained in the body of the will being thus valid, the statement in the
penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is
sufficient attestation which may be considered in conjunction with the last paragraph. It is
significant that the law does not require the attestation to be contained in a single 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, as in this case.

The result reached in respect of the sufficiency of the will (Exhibit 1 — Manolita G. Carungcong)
necessarily disposes of the contention of appellant Manuel Gonzales that the trial court erred in not
admitting to probate the will (Exhibit B — Manuel Gonzales), since the latter will must be considered
revoked by the subsequent will (Exhibit 1 — Manolita G. Carungcong).

What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1
— Manolita G. Carungcong) has been revoked by the testatrix in the instrument of November 18,
1948 (Exhibit 2 — Alejandro and Juan Gonzales) which provides as follows: jgc:chanrobles.com.ph

"Ako, MANUELA YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng
Rizal, may mahusay at wastong pagiisip at mabuting pagtatanda, sa pamamaguitan ng kasulatang
ito at bilang huling kapasiyahan ay sinasaysay ko at ipinahahayag sa ñgayon sa alin mang
testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan ko ng saysay
at kabuluhang lahat pagkat hindi iyong ang tunay kong kalooban ñgayon.

"‘Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito 1948,
dito sa ciudad ng Pasay’." cralaw virtua1aw library

Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix
lacked the testamentary capacity when she allegedly executed the instrument of revocation, and
their contention was sustained by the trial court. We have examined the record and found no valid
reason for reversing the finding of said court which had the benefit of observing and hearing the
witnesses testify. Upon the other hand, the following considerations amply support the appealed
decision:chanrob1es virtual 1aw library

1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On
November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital
upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital
authorities (Exhibit E — Manuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from
hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged
instrument of revocation was executed by her, the testatrix was in a comatose and unconscious
state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the
physical condition of the testatrix up to November 18, 1948: jgc:chanrobles.com.ph

"P. ¿Y que hizo usted cuando Doña Manuela I. Vda. de Gonzales ya estaba en el hospital?

R. Me fui alla para examinarla.

"P. ¿Cual era el resultado de su examen?

R. Cuando fue al hospital a examinarla en el primer dia via que la aphasia se agravo, o sea que ha
perdido el poder de hablar inteligentemente; tambien encontre que estaba inconsciente, durmiendo
constantemente y no se le podia, despertar, tenia la respiracion fatigosa, lenta y con estertores, y
no podia levantarse, asi que yo perscribi que diera el alimento por medio de hypodermoclysis, o sea
por medio de inyecciones.

"Sr. PAMINTUAN. — ¿Quisieramos saber, Su Señoria, si se presenta al testigo como experto?

"Sr. SERRANO. — Tambien quisiera saber si se presenta como medico de la familia o como medico
experto?

"Sr. ARCEGA. — Presento al testigo como medico de cabecera y como medico experto el mismo
tiempo.

"P. ¿Y que hicieron en el hospital en vieta de sus instrucciones?

R. Cumplieron la prescripcion mia.

"P. ¿Que sucedio con respecto al estado de la paciente?

R. La paciente a medida que pasaban los dias se quedaba grave cada vez y mas graves los sintomas
aun que el primer dia en que fue ella llevada al hospital.

"P. Volviendome a la condicion de la paciente, en que estado se encontraba Doña Manuela I. Vda.
de Gonzales el 14 de noviembre de 1948 antes de ingresarla en el hospital?

R. La encontre con aphasia, no podia hablar inteligentemente.

"P. ¿Puede usted explicar al Juzgado el curso de la enfermedad de Doña Manuela I. Vda. de
Gonzales?

R. Estuvo agravandose desde el segundo dia en que fue ingresada al hospital, y desde ese dia ya
orinaba y deponia en la cama inconscientemente.

x          x           x

(t. s. n., Laquindanum, March 21, 1949, pp. 24-26.)

P. ¿Explique usted al Juzgado el curso de la enfermedad de la paciente haciendo referencia de las

fechas que aparecen en los Exhibitos 3 y 3-4?

R. El noviembre 14, ordene el ingreso de la paciente al Mercy Hospital, porque tuvo paralisis parcial
en la lengua, probablemente de origen embalismo o thrombosis cerebral, y como ya era de noche
no se llevo al hospital, sino el dia 15 de noviembre en donde le he hecho dos visitas; la condicion de
la paciente continuo empeorando hasta el dia 25 de noviembre en que sobrevino la complicacion de
pneumonia hypostatica hasta qus fallecio el noviembre 27, 1948, a las 2:30 p.m.

x          x           x

(t. s. n., Laquindanum, March 21, 1948, pp. 28-29.)

"JUZGADO. — P. ¿Como llego usted a esa conclusion de que desde el 14 de noviembre de 1948 en
que usted ordeno la entrega de la paciente al hospital empeoro su salud hasta que murio el dia 27
de noviembre de 1948?

R. Porque cada vez mas se acentua su estado comatoso, y demas su respiracion se hacia mas
fatigosa cada vez que pasaban los dias, y con estertores.

"P. ¿Y como estaba en estado mental?

R. Estaba completamente inconsciente desde el dia en que entro en el hospital.

"Sr. ARCEGA. — P. ¿Podia hablar la paciente en la fecha en que fue ingresada al hospital?

R. No, señor.

"P. ¿Despues del 15 de noviembre de 1948 en que segun usted fue ingresada la paciente en el
hospital podia hablar ella y hacer entender sus palabras?

R. No, señor.

"P. ¿Y que hacia la paciente?

R. Estaba durmiendo continuamente, no podia abrir sus ojos por si sola, sino que yo abria para ver
la pupila.
"P. ¿Trato usted de tener conversacion con la paciente?

R. Naturalmente trataba, pero no contestaba, y ni creo que me entendia.

"P. ¿Podia levantarse la paciente?

R. No, señor, porque estaba en estado comatoso, y para prevenir la pneumonia hypostatica dos o
tres hombres tenian que levantarla y ponerla algo de costado o algo asi reclinada.

"P. ¿Y que resultado tuvo esa precaucion que usted tomo?

R. Se ha retrasado o retardado la pneumonia, pero sobrevino, al fin, que siempre es fatal.

"P. ¿Usted dijo que al fin sobrevino la pneumonia, que efecto tuvo esa pneumonia a la paciente?

R. Precipito la muerte de la paciente.

"P. ¿EI 18 de noviembre de 1948, segun testimonio de los testigos, otorgaron el documento Exhibit
2 — Alejandro y Juan Gonzales, puede usted decir al Juzgado en que estado se encontraba Doña
Manuela I. Vda. de Gonzales?

R. Estaba en esetedo comatoso.

"P. ¿Por que sabe usted eso?

R. Porque en esa fecha yo la visite dos veces: una por la mañana y otra por la tarde.

"P. ¿Y estando en el estado comatoso, como usted, dice, puede usted decir al Juzgado si podia ella
hablar o entender sus palabras o su deseo?

R. No, señor.

"P. ¿Hizo usted esfuerzos pera hacerie comprender sus palabras?

R. Siempre examinaba a ella para ver si reaccionaba favorable-mente la paciente, pero cada vez era
peor.

"P. ¿Puede usted decir si en equella fecha la paciente podia siquiera hacer movimiento de cabeza?

R. No, señor, porque la parte derecha del cuerpo tenia hemihejia o paralisis.

"P. ¿Cual es la causa de eso que usted dice hemiflejia o paralisis?

R. Generalmente se debe a una hemorragia cerebral o trombosis del cerebro.

"P. ¿Teniendo hemorragia cerebral o trombosis del cerebro, segun usted, cual ee la parte del cuerpo
humano que queda afectada?

R. La cabeza y tambien los brazos, como los miembros del cuerpo.

"P. ¿Que quiere usted decir ’como los miembroe del cuerpo’?

R. Las manos y los pies.

"P. ¿Podia mover la paciente sus manos y su cuerpo?

R. La parte izquierda si.

"P. ¿Y la parte derecha?

R. No, señor.
"JUZGADO. — Pero una persona en ese estado de salud, como estaba la paciente Doña Manuela I.
Vda. de Gonzales, el 18 de noviembre de 1948, podia comprender palabras dichas a ella o
indicaciones hechas por alguna persona a ella?

R. No, señor." cralaw virtua1aw library

(t. s. n. Laquindanum, March 21, 1948, pp. 30-33.)

While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert,
the latter’s testimony remains uncontradicted. The fact that the testimony of the attesting witnesses
tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation
was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because
even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the
testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the
last moment of the deceased and they were trying to make me an instrument in the
accomplishment of their aims," and that he had the idea that the testatrix was in doubtful condition
because he "could only judge from the people going there." cralaw virtua1aw library

It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have
ordered to "let her sit on bed or on a chair and let her turn on her side sometime." However, Dr.
Leveriza has given the reason for this prescription, namely, to avoid hypostatic pneumonia.

In support of the contention that the testimony of the attesting witnesses should be given more
credence than the opinion of an expert witness, reliance is placed on the case of Caguioa v.
Calderon, 20 Phil., 400; Bagtas v. Paguio, 22 Phil., 227; Galvez v. Galvez, 26 Phil., 243; Samson v.
Corrales Tan Quintin, 44 Phil., 573; Amata v. Tablizo, 48 Phil., 485, and Neyra v. Neyra, 42 Off.
Gaz., 2790 * These cases are notably distinguishable from the case at bar. The former refer to
situations in which the doctors were not in a position to certify definitely as to the testamentary
capacity of the testators at the time the wills therein involved were executed, because they had not
observed the testators on said dates or never saw them; whereas the case now before us involves a
family physician who attended the testatrix during her last illness and saw her on the day when the
alleged instrument of revocation was executed.

2. We cannot help expressing our surprise at the fact that the instrument of revocation was
allegedly executed on November 18, 1948, when, according to the testimony of Jose Padilla, the
latter was asked by the testatrix to prepare the necessary document as early as in the month of
May, 1948, and reminded about it for the second time weeks before November 1, 1948, and for the
third time several days before the latter date (November 1, 1948). The first excuse given by Jose
Padilla for the delay is that he was busy and the children of the testatrix had certain disputes which
he tried to settle. The second excuse is that he was not able to secure soon enough from Alejandro
Gonzales, Jr. some documents of transfer which he wanted to examine in connection with the
preparation of the desired instrument of revocation. We are inclined to state that these excuses are
rather poor. If Jose Padilla was too busy to give attention to the matter, he could have very easily
informed the testatrix and the latter, if really desirous of revoking her former wills, would have
employed another to prepare the requisite document. The fact that there were disputes between the
children of the testatrix certainly was not an obstacle to the accomplishment of the wish of the
testatrix. Neither was it necessary to examine the documents relating to the properties of the
testatrix, since the instrument of revocation could be prepared without any reference to the details
of her estate. Indeed, the instrument (Exhibit 2 — Alejandro and Juan Gonzales) is couched in
general terms.

3. Even under the theory of appellant Alejandro Gonzales, Jr., it is hard to rule that the testatrix had
sufficient testamentary capacity at the time of the execution of the alleged instrument of revocation.
In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix, first, if she
was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if she was
agreeable to the signing of said document by Constancio Padilla, to which two questions the
testatrix allegedly answered "Yes." It is not pretended that the testatrix said more about the matter
or gave any further instruction. The attesting witnesses were not introduced to the testatrix, and
their presence was not even mentioned to her. It is obviously doubtful whether the testatrix
understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the
affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her a
manifestation of her desire to proceed, right then and there, with the signing of the questioned
instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot
rightly be said to have published her last will to the attesting witnesses.

The appealed decision is, therefore, affirmed without costs. So ordered.