Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present
one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1 which was a
petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the
more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant
to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No.
2176, for the probate of the disputed will, which was opposed by the private respondents presently, Panfilo and
Felino both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said
petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court,
after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the
petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7,
1985, affirmed the order. The petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-
Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an
intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First
Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress,
or to be exact on February 1, 1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement
of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but,
unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the
late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento),"
dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have
found the testament, the original copy, while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance
of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received
by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and
legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in
Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the
allowance of the will When the trial court denied their motion, the petitioner came to us by way of a petition for
certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out
the matters raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers
allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that
the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by
the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and,
her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we
do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's
will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned,
torn cancelled, or obliterated by some other person, without the express direction of the testator,
the will may still be established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not
imperative that the physical destruction be done by the testator himself. It may be performed by another person but
under the express direction and in the presence of the testator. Of course, it goes without saying that the document
destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that
requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence
and under his express direction. There is paucity of evidence to show compliance with these requirements. For one,
the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all,
much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express
direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were
one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was
located in which the papers proffered as a will were burned.

The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the
trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear
"inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned
was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because,
according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied
legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very
foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners
argue that the same is already barred by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate
proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to
annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is
untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the former
judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the first and the second action, Identity of parties, of
subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate
settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with
respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of
the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on
the presence of a will and with the objective of proving its due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent
left no will. Thus, there is likewise no Identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No.
L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence,
on these grounds alone, the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken
up after the will has been duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985
and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the private respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.

Padilla, J., took no part.

 
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26317             January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on
the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record
that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A).
In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the
Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on
the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a
new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of
the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the
second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked
during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased
Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties,
denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in
the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been
satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator
Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the
will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original
Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that
inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of
1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose
Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased,
who was living in the house with him, when cross-examined by attorney for the opponents, testified that the
original Exhibit A could not be found. For the foregoing consideration and for the reason that the original
of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that the will in
question had been executed with all the formalities required by the law; that the same had been revoked and
cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not
estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted
by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the
revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or
cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be
inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot
be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence
of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed
that such will has been destroyed by any other person without the knowledge or authority of the testator. The force
of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong
according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed
by the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac
and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will
the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having
proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great
majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed
in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may
be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been
cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any
finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

.
 EN BANC

[G.R. No. L-2538. September 21, 1951.]

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, Petitioner-
Appellee, v. LUZ, GLICERIA and CORNELIO MOLO, Oppositors-Appellants.

Claro M. Recto and Serafin C. Dizon, for Appellants.

Delgado & Flores, for Appellee.

SYLLABUS

1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID REVOCATORY CLAUSE. — A

subsequent will containing a clause revoking a previous will, having been disallowed for the reason that it was not
executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annuling the previous will, inasmuch as said revocatory clause is void (Samson v.
Naval, 41 Phil., 838).

2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. — Even in the supposition that the destruction of
the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will where it is founded on the mistaken belief that the later
will has been validly executed and would be given due effect. The earlier will can still be admitted to probate under
the principle of "dependent relative revocation." The theory on which this principle is predicated is that the testator
did not intend to die intestate. And this intention is clearly manifest where he executed two wills on two different
occasions and instituted his wife as his universal heir.

DECISION

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors- appellants
brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving
any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein
petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz, Gliceria and
Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the
testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed
on June 20, 1939, (Exhibit I). The latter will contains a clause which expressly revokes the will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022, seeking the probate of the will executed by the deceased on June 20, 1939.
There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of
the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties
presented their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another
petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special
proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on three
grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not
been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the
second petition could be heard, the battle for liberation came and the records of the case were destroyed.
Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on
the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28,
1948, the court issued an order admitting the will to probate as already stated in the early part of this decision. From
this order the oppositors appealed assigning six errors, to wit:jgc:chanrobles.com.ph
"I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate
of another alleged will of Molo dated 1918.

"II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo’s
alleged will of 1918.

"III. The lower court erred in not holding that petitioner herein has come to court with ’unclean hands’ and as such is
not entitled to relief.

"IV. The probate court erred in not holding that Molo’s alleged will of August 17, 1918 was not executed in the
manner required by law.

"V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself.

"VI. The lower court erred in not holding that Molo’s will of 1918 was subsequently revoked by the decedent’s will
of 1939."cralaw virtua1aw library

In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the
petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to
obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and
circumstances which in their opinion indicate that petitioner connived with witness Canuto Perez in an effort to
defeat and frustrate the probate of the 1939 will because of her knowledge that said will was intrinsically defective
in that "the one and only testamentary disposition thereof was a ’disposición captatoria’." These circumstances,
counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring
the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her
right to inherit from the deceased.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now
closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these
proceedings which are entirely new and distinct and completely independent from the other is improper and unfair
as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on
presumptions and conjectures not supported by any proof. For this reason, counsel contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is indeed no
evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the
1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from
the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature
when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness
in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she was unable to
impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him,
and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now for us to
determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the
testimony of Artemio Reyes at the rehearing has also been explained, and it appears that petitioner has failed
because his whereabouts could not be found. Whether this is true or not is not also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this imputation
becomes more glaring when we take stock of the developments that had taken place in these proceedings which
show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and
held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on
February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon
petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous
opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong
opposition of the oppositors who contended that the will had not been executed as required by law. After the
evidence of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated
their view that the will should be denied probate. And on the strength of this opposition, the court disallowed the
will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in
her favor invalid and ineffective, because it is a "disposición captatoria", which knowledge she may easily acquire
through consultation with a lawyer, there was no need for her to go through the ordeal of filing the petition for the
probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and
then take steps leading to the probate of the will executed in 1918. But her conscience was clear and bade her to take
the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate
of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her
vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same
was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was
reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which
petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited
their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it
is due to their own effort. It is now unfair to impute bad faith to petitioner simply because she exerted every effort to
protect her own interest and prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors
imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty of estoppel which would
prevent her from seeking the probate of the 1918 will simply because her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was instituted by her husband as his universal
heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed for being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in the 1939 will of the deceased which
was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid
and still has the effect of nullifying the prior will of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson v. Naval, (41
Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the
doctrine in that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case and we are indeed
impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it
is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen
why the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case.

"A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was
not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of
wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void." (41 Phil.,
838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or
antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said
ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be
abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the
revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the
United States. A long line of authorities is cited in support of this contention. And these authorities hold the view,
that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require
that it first undergo the formality of a probate proceeding." (p 63, appellants’ brief).

While there are many cases which uphold the view entertained by counsel for oppositors, and that view appears to
be controlling in the states where the decisions had been promulgated, however, we are reluctant to fall in line with
the assertion that is now the prevailing view in the United States. In the search we have made of American
authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State on the subject of revocation of wills. But the impression
we gathered from a review and study of the pertinent authorities is that the doctrine laid down in the Samson case is
still a good law. On page 328 of the American Jurisprudence, Vol. 57, which is a revision published in 1948, we
found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this
matter affecting the revocation of prior wills:jgc:chanrobles.com.ph

"SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with
the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the
statutes, attestation is necessary to the making of a valid will, an unattested nontestamentary writing is not effective
to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the
formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a
revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not executed in the manner required for a will.

"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of
the incapacity of the testator or of undue influence can have no effect whatever as a revoking will. Moreover, a will
is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil,
even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple
reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a
subsequent will or other writing executed with the same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies
with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly
purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute." (57 Am.
Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123,
there appear many authorities on the "application of rules where second will is invalid", among which a typical one
is the following:jgc:chanrobles.com.ph

"It is universally agreed that where the second will is invalid on account of not being executed in accordance with
the provisions of the statute, or where the testator has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the second will is really no will, it does not
revoke the first will or affect it in any manner." Mort v. Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d),
498."cralaw virtua1aw library

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They
reflect the opinion that this ruling is sound and good and for this reason we see no justification for abandoning it as
now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a will may be revoked "by
some will, codicil, or other writing executed as provided in case of wills" ; but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the
case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have
the effect of revocation. (See 57 Am. Jur. pp. 329-330).

But counsel for oppositors contend that, regardless of said revocatory clause, said will of 1918 cannot still be given
effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend
that the testator, after executing the 1939 will, and with full knowledge of the revocatory clause contained in said
will, himself deliberately destroyed the original of the 1918 will, and that for this reason the will submitted by
petitioner for probate in these proceedings is only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will
because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we
have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to
the testator himself and apparently they remained in his possession until he executed his second will in 1939. And
when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the
original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory
clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most
logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this
was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible
that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this
chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of
the first will by the testator. This matter cannot be left to mere inference or conjecture.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of
the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was
destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in
his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary
consequence of the testator’s belief that the revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to
probate under the principle of "dependent relative revocation."

"This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or
destroys a will or executes an instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for
some reason. The doctrine is not limited to the existence of some other document, however, and has been applied
where a will was destroyed as a consequence of a mistake of law . . . ." (68 C. J. p. 799).

"The rule is established that where the act of destruction is connected with the making of another will so as fairly to
raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new
disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new
disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation
fails and the original will remains in full force." (Gardner, pp. 232, 233.)

"This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new
will." (1 Alexander, p. 751; Gardner, p. 233.)

We hold, therefore, that even in the supposition that the destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has
been validly executed and would be given due effect. The theory on which this principle is predicated is that the
testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two
different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention
of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the
will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to
prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on
the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and
instruction of the testator. The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are
convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.

Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.

Reyes, J., concurs in the result.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17714             May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging that the testator revoked his
will by destroying it, and by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary requisites to
constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of a will animo
revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+

From the evidence submitted in this case, it appears that the testator, shortly after the execution of the first will in
question, asked that the same be returned to him. The instrument was returned to the testator who ordered his servant
to tear the document. This was done in his presence and before a nurse who testified to this effect. After some time,
the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw or
change the provisions he had made in his first will. This fact is disclosed by the testator's own statements to the
witnesses Canto and the Mother Superior of the Hospital where he was confined.

The original will herein presented for probate having been destroyed with animo revocandi, cannot now be probated
as the will and last testament of Jesus de Leon.

Judgement is affirmed with costs against the petitioner. So ordered.

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

Villamor, J., took no part.