[1952V207] In re: Petition for the probate of the will of the deceased Leona Singson. MANUEL SINGSON, petitioner-appellee, vs. EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA FLORENTINO VDA. DE LIM, oppositors-appellants.1952 Oct 251st DivisionG.R. No. L-4603D E C I S I O N
BAUTISTA ANGELO, J.:
This is an appeal from a decision of the Court of First Instance of Ilocos Sur admitting to probate the last will and testament of the late Leona Singson.
On January 13, 1948, Leona Singson died in Vigan, Ilocos Sur, leaving a will. In said will the deceased instituted as heirs her brothers Evaristo, Dionisio and Manuel, her nieces Rosario F. de Donato, Emilia Florentino and Trinidad Florentino de Paz, her grandniece Consolacion Florentino, and some servants. She named her brothers Evaristo and Manuel as executors of the will. On February 2, 1948, Manuel Singson filed a petition for the probate of said will.
On March 6, 1948, Emilia Florentino, Trinidad Florentino de Paz and Josefina Florentino Vda. de Lim, daughters of a sister of the deceased, opposed the petition alleging among other grounds that the signatures appearing in the will are not the genuine signatures of the deceased, and that the will has not been executed in accordance with the formalities of the law.
After due trial, the court found that the will has been executed in accordance with law and admitted the same to probate. The oppositors appealed to the Court of Appeals, but the case was later certified to this court for the reason that it involves purely questions of law.
The first error assigned refers to the admission by the lower court of the deposition of Fidel Reyes, an instrumental witness, which was taken because he was then suffering from paralysis and was thus physically incapacitated to appear and testify in court. It is the claim of the oppositors that, under section 11, Rule 77 of the Rules, if the will is contested, all the subscribing witnesses present in the Philippines must be produced and examined, and if they are dead, absent or insane, this fact must be satisfactorily shown to the court. If a subscribing witness is present in the Philippines but outside the province where the will has been filed, his deposition must be taken. In this case Fidel Reyes was not outside of the province, in fact he was then living in the place where the case was pending trial. He,
therefore, must appear in court and his deposition cannot be taken. And so they contend that the lower court erred in admitting his deposition instead of taking his testimony.
It should be noted that one of the three instrumental witnesses of the will, namely, Bonifacio Brillantes, was already dead when the case came up for trial and the only witnesses then available were Victoriano Lazo and Fidel Reyes who was then unable to appear because of his physical ailment. And when this matter was brought to the knowledge of the court, the latter manifested its desire to go to the house of the ailing witness for the taking of his testimony, but the move was prevented because of the conformity of counsel for the oppositors to the taking of his deposition. And because of this conformity, the deposition was taken and on that occasion opposing counsel was present and actually took part in the taking of the deposition. In the face of these facts, we opine that, while the taking of the deposition was not made in strict compliance with the rule (section 11, Rule 77), the deficiency, if any, has been cured by the waiver evinced by counsel for the oppositors which prevented the court from constituting itself in the residence of the witness.
We believe, however, that the deposition may also be justified by interpreting section 11, Rule 77, in connection with Rule 18, section 4(c), of the Rules, relative to the taking of the deposition of a witness in ordinary cases when he is unable to testify because of sickness. Interpreting and harmonizing together these two provisions we may draw the conclusion that even if an instrumental witness is within the seat of the court but is unable to appear because of sickness, as in this case, his deposition may still be taken, for a different interpretation would be senseless and impractical and would defeat the very purpose which said Rule 77 intends to serve.
Another point raised by oppositors refers to the alleged failure of the attestation clause to state the number of the sheets or pages in which the will is written which, it is claimed, is fatal because it is contrary to the express requirement of the law.
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481; Echavarria vs. Sarmiento, 66 Phil., 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.
One of such cases is De Gala vs. Gonzales and Ona, 53 Phil., 104. Here one of the objections raised was that the attestation clause does not state that the will had been signed in the presence of the witnesses although this fact appears in the last paragraph of the body of the will, and the Court, in overruling the objection, said that "it may be conceded that the attestation clause is not artistically drawn and that, standing alone, it does not quite meet the requirements of the statute, but taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent; it leaves no possible doubt as to the authenticity of the document".
Another case that may be cited is Mendoza vs. Pilapil (72 Phil., 546). In this case, the objection was that the attestation clause does not state the number of pages upon which the will was written, and yet the court held that the law has been substantially complied with inasmuch as in the body of the will and on the same page wherein the attestation clause appears written it is expressly stated that that will contains three pages each of which was numbered in letters and in figures. Said the court:
"El proposito de la ley al establecer las formalidades que se requieren en un testamento, es indudablemente asegurar y garantizar su autenticidad contra la mala fe y el fraude, para evitar que aquellos que no tienen derecho a suceder al testador, le suceden y salgan beneficiados con la legalizacion del mismo. Se ha cumplido dicho proposito en el caso de que se viene hablando porque, en el mismo cuerpo del testamento y en la misma pagina donde aparece la clausula de atestiguamiento, o sea la tercera, se expresa que el testamento consta de tres paginas y porque cada una de las dos primeras lleva en parte la nota en letras, y en parte la nota en guarismos, de que son respectivamente la primera y segunda paginas del mismo. Estos hechos excluyen evidentemente todo temor, toda sospecha, o todo asomo de duda de que se haya sustituido alguna de sus paginas con otra." (Mendoza vs. Pilapil, 72 Phil., 546.)
Considering the form in which the will in question is written in the light of the liberal ruling above adverted to, the conclusion is inescapable that the will has been drafted in substantial compliance with the law. This opinion is bolstered up when we examine the will itself which shows on its face that it is really and actually composed of eight pages duly signed by the testatrix and her instrumental witnesses.
The remaining question to be determined is: does the attestation clause state that the testatrix signed each and every page of the will in the presence of the three instrumental witnesses as required by law?
The disputed attestation clause reads as follows:
"Nosotros los testigos, conforme al ruego de Da. Leona Singson, en este testamento, despues de anunciarnos que este es su testamento donde hizo sus ordenes sobre su verdadera y ultima voluntad, firmo e imprimio su marca digital en presencia de todos nosotros; y nosotros firmamos tambien en presencia de ella y delante de cada uno de nosotros al pie del citado testamento y en el margen
izquierdo de sus otras paginas. Y hemos observado que Da. Leona Singson estaba en su sano juicio, pensamiento y uso de sus sentidos. (Exh. A-1)."
A perusal of the above attestation clause would at first glance give the impression that the testatrix merely signed or stamped her thumbmark on the will in the presence of the witnesses, without stating the place where her signature or thumbmark had been affixed, which impression is caused by the fact that right after the sentence firmo e imprimio su marca digital en presencia de todos nosotros, there appears a semicolon; but if this semicolon is disregarded, we would at once see that the testatrix signed or affixed her thumbmark not only at the bottom of the will but also on the left margin of each and every page thereon, considering the concluding part of the sentence concerning the signing of the will. That semicolon undoubtedly has been placed there by mistake or through inadvertence, as may be deduced from the use of the word tambien made by the witnesses in the sentence immediately following, which conveys the idea of oneness in action both on the part of the testatrix and the witnesses. Thus considered and interpreted, the attestation clause complies substantially with the law.
"The appellants earnestly contend that the attestation clause fails to show that the witnesses signed the will and each and every page thereof because it simply says 'que nosotros los testigos hemos tambien firmado en presencia de la testadora y en la presencia del uno al otro' (that we the witnesses also signed in the presence of the testatrix and of each other).
"In answer to this contention it may be said that this portion of the attestation clause must be read in connection with the portion preceding it, which states that the testatrix signed the will and on all the margins thereof in the presence of the witnesses; especially, because the word also used therein establishes a very close connection between said two portions of the attestation clause. This word also should, therefore, be given in its full meaning which, in the instant case, is that the witnesses signed the will in the same manner as the testatrix did. The language of the whole attestation clause, taken together, clearly shows that the witnesses signed the will and on all the margins thereof in the presence of the testatrix and of each other." (Rey vs. Cartagena, 56 Phil., pp. 282, 284.)
In view of the foregoing, we find that the lower court did not commit any of the errors assigned by appellants and, therefore, we affirm the decision appealed from, with costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor and Labrador, JJ., concur.
([1952V207] In re: Petition for the probate of the will of the deceased Leona Singson. MANUEL SINGSON, petitioner-appellee, vs. EMILIA FLORENTINO, TRINIDAD FLORENTINO DE PAZ, and JOSEFINA FLORENTINO VDA. DE LIM, oppositors-appellants., G.R. No. L-4603, 1952 Oct 25, 1st Division)
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Meanwhile, the petitioner filed a motion for the appointment of special administrator. Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of the intestate heirs and their addresses. The petitioner decided to file the present petition. For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of one another? Article 805 of the Civil Code provides: "Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. "The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. "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 with and the pages thereof in the presence of the testator and of one another. "If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them." The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is found, at the left hand margin of that page. On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing witnesses should be specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so
heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature. We find the petition meritorious. Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of identification. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449). The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code Commission, p. 103). Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the will. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page." In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used: "The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or passes composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach: " . . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses, did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attest to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.'" WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of the will, the motion for reconsideration of the denial of probate, and the motion for appointment of a special administrator are set aside. The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with this decision. No pronouncement of costs. SO ORDERED.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent. The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO SA NGALAN NG MAYKAPAL, AMEN: AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St. , Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento: Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones; Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana) PATUNAY NG MGA SAKSI Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St . Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAÑO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981. Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-8[1] The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of “the 12 legitimate heirs” of the decedent.[2] Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent.[3] It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,[4] and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.[5] Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.[6] The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore “the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;”[7] and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, “Patunay Ng Mga Saksi”: “Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.” The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will. With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.[8] The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.[9] The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.[10] Hence, the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that “the number of pages used in a notarial will be stated in the attestation clause” is merely directory, rather than mandatory, and thus susceptible to what he termed as “the substantial compliance rule.”[11] The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.[12] There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca[13] and In re: Will of Andrada.[14] In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.[15] In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: “The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve
the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty.”[16] The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare “unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal.”[17] It was further observed that “it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material.”[18] Against these cited cases, petitioner cites Singson v. Florentino[19] and Taboada v. Hon. Rosal,[20] wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the Will (Exhibit “D”), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme Court in “Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,” to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of “Manuel Singson versus Emilia Florentino, et al., supra,” although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will: “x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations.” (page 165-165, supra) nderscoring supplied) In “Apolonio Tabaoda versus Hon. Avelino Rosal, et al.” supra, the notarial acknowledgement in the Will states the number of pages used in the: “x x x We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as “Pagina dos” comprises the attestation clause and the acknowledgment. The acknowledgment itself states that “this Last Will and Testament consists of two pages including this page” (pages 200-201, supra) nderscoring supplied). However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.[21] Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.[22] Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618.[23] However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: “In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.” In the same vein, petitioner cites the report of the Civil Code Commission, which stated that “the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in the execution of wills.”[24] However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be “but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.”[25] Caneda v. Court of Appeals[26] features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills.[27] Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction.[28] However, the Code Commission opted to recommend a more liberal construction through the “substantial compliance
rule” under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings.[29] ( mphasis supplied.) The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each other,[30] the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded. Caneda suggested: “[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.”[31] Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance.[32] The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages.[33] The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills.[34] Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will.[35] The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro[36] is material on this point. As in this case, “the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.”[37] While three (3) Justices[38] considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot
be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.[39] The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be “attested and subscribed by [the instrumental witnesses].” The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses’ signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause. Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that “every will must be acknowledged before a notary public by the testator and the witnesses” has also not been complied with. The importance of this requirement is
highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.”[40] By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.[41] It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.[42] Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself “signed and notarized” the document. Possibly though, the word “ninotario” or “notarized” encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be “acknowledged”, and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.[43] The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called “logical end”[44] of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.[45] Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will. All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED. DANTE O. TINGA Associate Justice
[1953V115E] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET AL., oppositors-appellants.1953 Apr 29En BancG.R. No. L-5826D E C I S I O N
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to probate. It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law - which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions - has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign immediately after the attestation clause, the fear entertained by the majority that it may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."(supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (articles 788 and 791, New Civil Code).
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a fact that the attestation clause was not signed, when the witnesses' signatures appear on the left margin and the real and only question is whether such signatures are legally sufficient.
The only answer, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not any the less the writer's simply because it was signed, not at the conventional place but on the side or on top.
([1953V115E] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET AL., oppositors-appellants., G.R. No. L-5826, 1953 Apr 29, En Banc)
[1964V224E] IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.1964 Jun 30En BancG.R. No. L-18979D E C I S I O N
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila Chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition; and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorney Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte's last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A", consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and
marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original; that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix; that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copy were duly acknowledged before Notary Public Jose Oyengco Ong of Manila on the same date — June 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit A-1) are not genuine, nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents- appellees stand to profit from properties held by them as attorneys- in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same occasion, in the presence of the three attesting witnesses, the notary public who acknowledged the will, and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appealing in the duplicate original were not written by the same hand, which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion that the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that there are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the
effect of writing fatigue, the duplicate being signed right after the original. These factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering that standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy, being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary disposition that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil vs. Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to mark the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of the original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma: if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
([1964V224E] IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants., G.R. No. L-18979, 1964 Jun 30, En Banc)
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads: "PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs." The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982. In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will. Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia: "Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. "For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix. "xxx xxx xxx "While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with. "xxx xxx xxx "As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. "In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. "Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. "Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions." "Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature." It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following cases: "(a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c ) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto." In the same vein, Article 839 of the New Civil Code reads: "Article 839: The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedents. 6 In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: "The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded." For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 8105 and 806 of the New Civil Code. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus: "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed." ( mphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court held: "Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said 'la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes. It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows: "Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688. "Article 688: Holographic wills may be executed only by persons of full age. "In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution. "If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature. "Foreigners may execute holographic wills in their own language." This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code ---- and not those found in Articles 813 and 814 of the same Code ---- are essential to the probate of a holographic will. The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel. "The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit 'C'. Finding the insertions, alterations and/or additions in Exhibit 'C' not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit 'C'. "WHEREFORE, the petition to probate Exhibit 'C' as the holographic will of Natividad K. Kalaw is hereby denied." "SO ORDERED." From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were made by the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being clear and explicit, (it) requires no necessity for interpretation." From that order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa gave an identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2 However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature. The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
". . . No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones, no salvadas por el testador bajo su firma, segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determina las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se llegaria al absurdo de que pequeñas enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armoniay congruencia con el art. 26 de la ley del Notariado, que declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, pero no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l). "Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que no afecten, alteren ni varien de modo substancial la expresa voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del año en que fue extendido" 3 WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs. SO ORDERED. Plana, Gutierrez, Jr. and De la Fuente, JJ., concur. Relova, J., took no part. Separate Opinions TEEHANKEE, J., concurring: I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the testatrix in her own handwriting (I find it peculiar that the testatrix who was obviously an educated person would unthinkingly make such crude alterations instead of consulting her lawyer and writing an entirely new holographic will in order to avoid any doubts as to her change of heir. It should be noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated by the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however, be even effect in view of the trial court's factual finding that the testatrix had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kin succeed to her intestate estate.
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pañgalang Felicidad Esguerra-Alto. At kung ito ay may kakulañgan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.' (Lagda) Felicidad E. Alto-Yap" Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows: Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it. Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time. When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his well-known violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2 From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses.
Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it. In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will. In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills. The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742) From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances of its due execution. Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be - or not to be - in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity 3 - the testator's handwriting - has disappeared. Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation? The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence - the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.) Could Rule 77 be extended, by analogy, to holographic wills? Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 - an implied admission that such loss or theft renders it useless. This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them. We find confirmation of these ideas - about exhibition of the document itself - in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. "Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se
otorgaron se llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . ." This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter. 6 "PRECEDENTES LEGALES - Fuero Juzgo, libro segundo, titulo V, ley 15 - E depues que los herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda." (Art. 689, Scaevola - Codigo Civil.) (According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. 7 Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555) Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. 8 Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to
any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost - the forger may have purposely destroyed it in an "accident" - the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected. If testimonial evidence of holographic wills be permitted, one more objectionable feature - feasibility of forgery - would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10 One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand. Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will. In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11 Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with costs against petitioner. Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur. --------------- Footnotes 1. Now a member of the Court of Appeals. 2. The contents of the alleged will are for the purposes of this decision, immaterial.
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: "(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court: "(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will; "(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and "(4) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law. "The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No. 8275). Their motion was granted by the court in an order dated April 4,1977. "On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: "(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and "(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. "Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. "The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: '. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. 'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged holographic will was executed on January 25,1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: "I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; "II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; "III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL." The only question here is whether a holographic will which was lost or can not be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
[1960V331E] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-appellants.1960 Aug 31En BancG.R. No. L-15153D E C I S I O N
LABRADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made:
"The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. 'A', was signed in accordance with law; and in admitting the will to probate."
In view of the fact that the appeal involves a question of law the said court has certified the case to us.
The facts as found by the trial court are as follows:
"It appears on record that the last Will and Testament (Exhibit 'A'), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten 'Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following
phrase, 'Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos." ( talics supplied.)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of the law prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
"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." ( talics supplied.)
The clause "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," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
"No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, 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 each other. . . ." talics supplied)
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.
"Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner:
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe, Richard Roe.' All this must be written by the witness signing at the request of the testator.
"Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it."
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the
name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by Some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.
([1960V331E] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-appellants., G.R. No. L-15153, 1960 Aug 31, En Banc)
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: "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." 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 vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine 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: "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: "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 vs. Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d), 498." These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound 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.:. 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
She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will, which is in English, was thumb marked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case) On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina (p. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado. As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record. In an order dated March 31, 1975, Judge Honrado appointed Marina as administrative. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testratrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof. That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceedings a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order. In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record). On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit opposition with counter-petition of administration and preliminary injunction." Nenita in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the thumb marks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir was void because of the perpetration of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record) To that motion was attached an affidavit of Zenaida A. Peñaojas, the housemaid of Marcelina, who swore that the alleged will was falsified (p. 109, Record) Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April 23, 1975. To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who swore that Marcelina never executed a will (pp. 124-125, Record) Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's grand daughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely an anak-anakan who was not legally adopted (p. 143, Record) Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the nonappearance of her counsel at the hearing. She moved for the reconsideration of that order. In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp. 208, 209, Record). Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284, Record) Instead of appealing from that order and the order probating the will, Nenita "filed a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402, Record) Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding. About ten months later, in a verified complaint dated October 12,1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition. Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix. Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits of Marcelina. She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose her pension from the Federal Government. Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion dated July 6, 1976 she asked for a thirty-day period within which to vacate the house of the testatrix. Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline in her letter dated September 11, 1978 to President Marcos. Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline "strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal Government. The 1978 complaint against Judge Honrado was brought to the attention of this Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report dated October 7, 1981. On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void. Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to accommodate a brother-lawyer on the condition," that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment. The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 29. 1981)
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the administrative case for having allegedly become moot and academic. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void will should have inherited the decedent's estate. A judge may be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code) Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules" (In re Impeachment of Horrilleno, 43 Phil. 212, 214-215). Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119). In this case, respondent judge, on perusing the will and noting that it was written in English and was thumb marked by an obviously illiterate testatrix, could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language." (p. 16, Record of testate case) That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660) The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix." Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive. Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness. In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.
before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could be no other than signed and the subject no other than the testatrix. The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses signed in the presence of the testatrix and of one another, so the testatrix signed in similar or like manner - in their presence. In consonance with the principle of liberal interpretation, adhered to in numerous later decisions of this Court and affirmed and translated into enactment in the new Civil Code (Article 827), we are constrained to hold the attestation clause under consideration sufficient and valid. "Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.) "It could not have been the intention of the legislature in providing for the essential safeguards in the execution of a will to shackle the very right of testamentary disposition which the law recognizes and holds sacred." (Leynes vs. Leynes, supra.) With reference to Exhibit B the Court of Appeals agreed with the trial court that the document having been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the contents of Exhibit B are couched in the language ordinarily used in a simple affidavit and as such, may not have the legal effect and force of a testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any instrument other than the will Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple affidavit." Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil Code of Spain as "the act by which a person disposes of all his property or a portion of it," and in article 783 of the new Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death." Exhibit B comes within this definition. Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate as an independent testamentary disposition. In the absence of any legal provision to the contrary - and there is none in this jurisdiction - it is the general, well-established rule that two separate and distinct wills may be probated if one does not revoke the other (68 C. J., 885) and provided that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As seen, Exhibit B embodies all the requisites of will, even free of such formal or literary imperfections as are found in Exhibit A. It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to
[1959V364E] JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositor-appellee.1959 Dec 24En BancG.R. No. L-12207D E C I S I O N
BAUTISTA ANGELO, J.:
Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios.
On June 21, 1956, Maria Catimbang filed an opposition to the probate of the will alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in said will thus impairing her legitime.
After the presentation of petitioner's evidence relative to the essential requisites and formalities provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident, the court issued another order declaring oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime, with costs against petitioner.
From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and accordingly, the record was elevated to this Court.
It should be noted that petitioner instituted the present proceeding in order to secure the probate of his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a testator to petition the proper court during his lifetime for the allowance of his will, but to such petition one Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in the will thus impairing her legitime. In other words, Maria Catimbang does not object to the probate of the will insofar as its due execution is concerned or on the ground that it has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of the provisions of the will.
We hold that such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for such issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.
This is in line with our ruling in Montañano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated."
On the other hand, "after a will has been probated during the lifetime of a testator it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54). The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code).
It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an acknowledged natural daughter of the testator. This is an extraneous matter which should be threshed out in a separate action.
Wherefore, the order appealed from is set aside, without pronouncement as to costs.
"1. The lower court erred in holding that in order for Juana Gatmaitan to preserve her rights, so far as to oppose the probate of the codicil, it was her duty to oppose to the probate of the will; and, having opposed the probate only of the codicil, she could no longer avail herself of the document in her favor, so as to affect the testamentary dispositions of the deceased Leonarda Macam. "2. The lower court erred in dismissing the opposition of Juana Gatmaitan to the probate of the alleged codicil." The appellants assignments of error, considered together, raise the following questions of law: 1. Is the probate of a will by final judgment prior to that of a codicil thereof a bar to the probate of said codicil? 2. Does the failure of file opposition to the probate of a will constitute a bar to the presentation of the codicil for probate? The following pertinent facts, which are disclosed by the pleadings, are necessary for the resolution of the questions raised in this appeal: On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of Bulacan a petition for the probate of the will dated July 12, 1932, and of the codicil thereof dated February 17, 1933, executed by Leonarda Macam who died on March 18, 1933, in the municipality of Calumpit, of said Province of Bulacan, and for her appointment as executrix without bond. When the petition was called for hearing on April 24, 1933, in the absence of the judge, the clerk of the Court of First Instance of Bulacan, upon instructions of said judge to proceed to take the evidence in the absence of any opposition, took the evidence relative to the probate of the will, no opposition to the same having been filed. Inasmuch as Juana Gatmaitan filed opposition to the probate of the codicil, said clerk deemed himself unauthorized to take the evidence relative thereto and refrained from so doing. The will and the evidence for its probate having been submitted to the court the vacation Judge Hon. M. Rosauro, on April 28, 1933, entered an order allowing said will and appointing the petitioner Nicolasa Macam as executrix. On July 6, 1933, after notice to the parties, the codicil was called for hearing, opposition having been filed by Juana Gatmaitan, one of the legatees instituted in the will which had already been allowed by final and executory judgment. After hearing counsel for the respective parties, Judge Francisco Enage, then presiding over the Court of First Instance of Bulacan, entered the order the dispositive part of which has been quoted at the beginning of this decision. Section 625 of the Code of Civil Procedure provides as follows: "SEC. 625. Allowance necessary, and conclusive as to execution. — No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution."
Interpreting the above legal provisions as regards the scope of the allowance of a will, this court, in numerous decisions, has laid down the doctrine that the probate of a will is conclusive as to its due execution and as to the testamentary capacity of the testator, but not as to the validity of its provisions, and in probate proceedings the courts are without jurisdiction to determine questions concerning the validity of the provisions of the will. (Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs. Ventenilla, 21 Phil., 180; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105.) "A codicil is a written instrument wherein one declares his last will, in order to take from or add something to the will, or clarify the provisions thereof." (Spanish Cyclopaedia of Law, vol. 5, page 918.) "A codicil has been defined as some addition to or qualification of one's last will and testament." (28 R. C. L., 197.) The exercise of the right to make a will, as a voluntary act, implies the right to revoke, and article 737 of the Civil Code expressly provides that wills are essentially revocable, provided that the partial or total revocation is made with the formalities required for making it, in accordance with the provisions of article 738 of the same Code. The fact that a will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation and probate of a codicil, provided it complies with all the necessary formalities for executing a will required by section 614 of the Code of Civil Procedure, as amended by section 1 of Act No. 1934. It is not necessary that the will and the codicil be probated together, as the codicil may be concealed by an interested party and it may not be discovered until after the will has already been allowed; and they may be presented and probated one after the other (40 Cyc., 1228), since the purpose of the probate proceedings is merely to determine whether or not the will and the codicil meet all the statutory requirements for their extrinsic validity, leaving the validity of their provisions for further consideration. The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded and the court a quo erred in flatly denying her petition for the probate of the codicil on the erroneous ground that said codicil should have been presented at the same time as the will. With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the fact that she failed to file opposition to the probate of the will does not prevent her from filing opposition to the probate of the codicil thereof, inasmuch as the will may satisfy all the external requisites necessary for its validity, but the codicil may, at the time of its execution, not be in conformity therewith. If the testator had testamentary capacity at the time of the execution of the will, and the will was executed in accordance with all the statutory requirements, opposition to its probate would not lie. On the contrary, if at the time of the execution of the codicil the testator lacked some of the subjective requisites legally capacitating him to execute the same, or all the statutory requirements were not complied with in the execution thereof, opposition to its probate would lie. The court a quo, therefore, erred in dismissing the opposition filed by the oppositor-appellant Juana Gatmaitan to the probate of the codicil of the will of the deceased Leonarda Macam.
Clemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees' attorneys, Messrs. Jose Belmonte and Vicente Delgado, announced their opposition to the will Exhibit C in open court, before said document was opened by order of the court on that day. One of the principal reasons of the court a quo for believing Exhibit C to be a forgery is that in the genuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u," while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although in the central signature appearing on page 2, the two letters are separated. The probate court believes that this difference between the marginal and the central signatures is due to the fact that the forger first used the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but having been shown another signature with the characteristic already mentioned — separation of the two letters he tried to imitate said peculiarity in making the central signature. We believe the probate court has overlooked the well-established principle that in passing upon questioned documents, the test is the general character of the writing rather than any minute and precise comparison of individual letters or lines. In People vs. Bustos (45 Phil., 30), this Court held: "It is a first principle in writing that exact coincidence between two signatures is absolute proof that one or the other is a forgery. There must be some difference before authenticity can be admitted; and the general rule is that authenticity reposes upon a general characteristic resemblance, coupled with specific differences, such as naturally result from the infinite variety of conditions controlling the muscles of the writer at each separate effort in forming his signature." ( mphasis supplied.) In the present case, a careful scrutiny of all the questioned and the standard signatures has convinced us that they have been written by the same person because they show the same general type, quality and characteristics, with natural variations. We are, therefore, inclined to give credence to the expert testimony to that effect presented by the appellant. Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned signatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "Questioned Documents" (pp. 368, 369) says: "Another indication of genuineness in a holographic document or a considerable amount of writing, or in two or more disputed signatures, are certain natural variations in the details of the writing. It is difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in a group of several signatures and variation in repeated words and letters in a continuous holographic document can be evidence of genuineness. The forger does not understand this necessity for natural variation and, as nearly as he can, makes words and letters just alike. xxx xxx xxx "It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery." ( mphasis supplied.)
Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that a forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In this case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it was not necessary to make a signed duplicate of the will. As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a model in falsifying the marginal signatures, it is highly improbable that said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or about October 2, 1937, when the document in question was signed. The check had been issued on June 30, 1936, or over a year before, and it must have been returned by the bank concerned to "La Previsora" in the ordinary course of business, because it was produced by the Manager of "La Previsora." It should likewise be observed that the signature on the first page of the duplicate will (Exhibit C-3) does not have the supposed peculiarity of the standard signatures, that is, the separation between "R" and "u." If, as the lower court states, the forger upon being shown a model other than Exhibit I, imitated said characteristic separation in making the central or body signature on the original will Exhibit C, it is indeed strange that he should not do the same immediately thereafter on the first page of the duplicate will but that he should, instead, repeat the mistake he had made on the marginal signatures on the original will. Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive. Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet the forgery of a will, which would not only send him to jail for many years but would ruin his future, we must require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt. And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It is hard to believe they would commit perjury as it has not been shown they had any interest in this case. Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, is genuine and should be allowed. It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined in detail by the probate court, inasmuch as the foregoing disposes of the basic question raised. The relative position of the contending devisees in the affection of the deceased; whether Rufina Arevalo could go alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged resentment of the testatrix toward Amando Clemente when she signed the second will, and similar questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, they merely tend to becloud the main issue. The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937, whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9, 1936. Though both parties admit that the first will has been revoked by the second, yet we deem it necessary to discuss the question because a member of this Court thinks the earlier will can stand in part. It appears that the undivided interest of Rufina Arevalo in two parcels of land and the improvements thereon which belonged to the conjugal partnership between Bernabe Bustamante, who had died before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando Clemente in the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and the
buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, Petrona Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor of Amando Clemente, another cousin, of a piece of land and the houses thereon, and of her undivided interest in the two parcels of land and the improvements thereon, which belonged to the conjugal partnership, also making said Amando Clemente the residuary legatee. But in the second will, Exhibit C, she designates Ariston Bustamante her only heir in these terms: "Segundo — Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble que se describen ms abajo: (a) Original Certificate of Title of Manila No. 5059 (b) Original Certificate of Title of Manila No. 4681 (c) Transfer Certificate of Title of Manila No. 19961 (d) Original Certificate of Title of Manila No. 5066 (e) Original Certificate of Title of Manila No. 4682." Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the later will, Exhibit C. Moreover, the second will has no revocation clause. At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in said two parcels of land belonging to the conjugal partnership. But a closer examination of the later will counteracts such initial reaction. In the first place, the testatrix in the second will names Ariston Bustamante her only heir to all her property, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble." ( mphasis supplied.) It is true that in enumerating her parcels of land, she did not specify her interest in the two lots of the conjugal partnership. But this omission must have been due either to an oversight or to the belief that it was premature to name said two parcels as the conjugal partnership was still being liquidated. In either case, the testatrix must have thought that her comprehensive words "mi unico heredero de todas mis propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whether specially listed or not. Secondly, in the opening paragraph of the second will, the following words appear: "hago constar a todos este mi ultimo testamento y voluntad expresado en Castellano lenguaje que conozco y poseo, y queriendo disponer de mis bienes por virtud de este mi testamento." ( mphasis supplied.) Though she knew that she had made a first will, she nevertheless said that the second will was her last one. This would seem to signify that her last will, cancelling her previously expressed wish, was to make Ariston Bustamante her only heir. Furthermore, when she said she wanted to dispose of her property by means of the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would appear to be her intention that no property of hers should be left undisposed of in the second will. This fact is corroborated in the second clause wherein she names Ariston Bustamante as her only heir to all her property whether personal or real.
We believe, therefore, that the first will has been entirely revoked. Though it might appear right that Amando Clemente should receive something from the estate because he, together with Ariston Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our 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 later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she chose, subject of course to the payment of her debts. 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 function of the courts in these cases is to carry out the intention of the deceased as manifested in the will. 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 pale of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. It might be said that it is hard to understand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments, 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 processes of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall be entered allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No special pronouncement on costs is made. Let the record of this case be returned to the court of origin for further proceedings. So ordered. Yulo, C.J., and Moran, J., concur. Separate Opinions OZAETA, J., concurring: I concur in the finding that the will Exhibit C is genuine. I think, however, that the discussion in the majority opinion of whether or not said Exhibit C entirely revoked the previous will Exhibit 6 is unnecessary, inasmuch as both parties in their brief have admitted the affirmative. There being no controversy between the parties on that score, there seems to be no occasion for the Court to render an opinion thereon. PARAS, J., concurring and dissenting: The testatrix in this case executed two wills, one on January 9, 1936, and the other on October 2, 1937. In the first will, the testatrix specifically referred to seven parcels of land of considerable value and to certain personal properties. Three of these parcels of land and all the personal properties are given to Amando Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo and Carmen Papa. In the second will, the testatrix particularly referred to only five parcels of land and certain personal properties, all of which are given to Ariston Bustamante, as her universal heir. The second will does not make mention of two of the three parcels given to Amando Clemente under the first will.
The question that arises is whether the second will has the effect of revoking the first. In my opinion, where, as in the present case, the two wills can be reconciled, the first should be considered revoked only in so far as it is inconsistent with the second. As the second will was executed only twenty-one months after the first, the testatrix, who has been conclusively shown to be of sound mind at the time of the execution of the later will, could not have forgotten that she owned two other parcels of land, especially if they are of considerable value. Even the lawyer who drafted the second will was aware that the testatrix owned the said two parcels, because they were included in the inventory made of her properties in connection with the administration proceedings of the estate of her deceased husband. This omission could have been made only on purpose, and, coupled with the circumstance that the second will does not expressly revoke the first which has not been burned, torn, cancelled or obliterated, inevitably leads to the inference that the testatrix in fact intended to make the first will effective as to the two parcels of land above referred to. Section 623 of the Code of Civil Procedure provides: "No will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in case of wills; or by burning, tearing, cancelling, or obliterating the same with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction." xxx xxx xxx "If partially conflicting, that of the latter date will operate to revoke the former so far as the provisions of the two are conflicting or incompatible, and in such case both wills are entitled to probate." (68 Corpus Juris 805.) "Where there is no revocation in a later will of all former wills, two separate and distinct wills may be probated, especially when the probating of one only of the instruments would leave an intestacy as to part of the estate. This rule applies even though the later instrument states that it is the last will and testament of the testator, as the use of such words in a later instrument does not of itself revoke a prior will." (Id. p. 885.) I therefore vote for the probate of both wills.
Samson v. Naval, 41 Phil. 838
G.R. No. L-11823 February 11, 1918
CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants,
vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.
Guillermo Lualhati for appellants. Perfecto Gabriel for appellees.
ARAULLO, J.:
On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city of Manila for allowance as the will of Simeona F. Naval, who died in said city two days previously, a document executed by her of February 13, 1915, and in which he was appointed executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor, it was denied on the ground that said document was not duly executed by the deceased as her last will and testament, inasmuch as she did not sign it in the presence of three witness and the two witnesses did not sign it in the presence of each other. Thereafter the nieces and legatees of the same deceased filed in the same court for allowance as her will, another document executed by her on October 31, 1914, and, consequently, the case was registered under another number, which was No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, could not be allowed, because of the existence of another will of subsequent date, executed during her lifetime by the same Simeona F. Naval, and because said will has been revoked by another executed subsequently by her during her lifetime, and further, because sail will has not been executed with the formalities required by existing laws. Trial having taken place, at which evidence was adduced, the court on February 8, 1916, issued an order, admitting said second document and ordering its allowance as the last will and testament o said deceased. From said order the opponents appealed to this court and transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the following:
1. The finding of the court that the will of October 31, 1914, has not been revoked by that of February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed with the proceedings relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings had already been had in the other case No. 13386 and final judgment rendered therein; and
3. The act of the court in denying the motion for continuance of the trial on the allowance of the will of October 31, 1914, which motion was presented for the sole purpose of introducing evidence to show the falsity of the signature appearing in said will and submitting said signature to the Bureau of Science for analysis.
The other opponent, Monica Naval, assigned, besides the first two errors already mentioned, the finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on the ground that is was not executed in such form that it could transmit real and personal property, according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court declared that the first document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her on February 13, 1915, and which was the subject-matter of case No. 13386 of said court, could not be allowed, on the ground that it was not executed with the requisites and formalities prescribed by law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by another valid subsequent will, if the testator does not state in the later will his desire that the former should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623 of the Code of Civil Procedure, which provides that no will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in case of wills.
Therefore, according to the legal provisions, in order that the will of February 13, 1915, that is, the first document presented as the will of the deceased Simeona F. Naval, could have the effect of
revoking that which was presented afterwards by the petitioners as executed by the same deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and indispensable that the later will, that is, that first presented for allowance, should be perfect or valid, that it, executed as provided by lay in case of wills.
It also appears from the record that the opponents themselves maintained that said later will, that is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and the Court of First Instance of Manila has so held in disallowing said documents as the will of the deceased. So that it very evident that the second will presented, that is, that of October 31, 1914, was not and could not have been revoked by the first, and the court was not in error in so holding in the order appealed from. We deem it unnecessary to add a single word mere or cite well-known doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it sufficient to refer to what the court below stated in the judgment appealed from. It is as follows:
The court finds no incongruency in the presentation of a prior will when another will of subsequent date has been disallowed. Disregarding the fact that the petitioners in this case were not those who presented the will in No. 13386, in which the petition was presented by the same D. Perfecto Gabriel as executor, it is proper to take into account that the object of a petition for allowance is to ask for an order declaring that a will has been executed in accordance with the requisites and formalities required by law. This is a question for the court to decide and is out of the control of the party who presents the will. The allowance or disallowance of a will by a competent court depends upon whether the evidence adduced at the trial shows or does not show that the formalities required by law have been complied with, and this cannot be determined in advance, as a general rule, by the person who presents the testament. for he has not always concurred in or seen the execution of the will.
If, therefore, the personal who presents a will and asks that if be allowed does not secure its allowance, and he has in his possession another will, or has information that another exists, he does not contradict himself by asking for the allowance of the will of earlier date merely because the later will was declared invalid by the proper court. If in this case there is any who adopts a contradictory position, it is the respondent himself, inasmuch as in case No. 13386 he alleged, as a ground for the disallowance of the will then presented, that it was not executed in accordance with the law, and now he maintains the contrary, for he claims that said will revoked that which is now presented.
With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that when the examination of the witness, Cristina Samson, was finished and the court told Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more proof, although he added that he would ask the court to grant him permission to send the will of 1914 to the Bureau of Science, which petition was objected to by the attorney for the proponents and denied by the court. Immediately thereafter the attorney for the opponents asked for the continuance of the trial, which was also denied by the court, after objection was made by the proponents. The attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the terms in which it was made to the court, after ha had stated that he had no more evidence to present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no exception was taken to the order to the order denying this motion, and although the attorney for the opponents excepted to the order denying the motion for continuance of the trial, such exception was completely useless and ineffective for the purpose of alleging before this court that the trial court erred in that respect, for said resolution, being one of those left to the discretion of the court in the exercise of it functions, according to section 141 of the Code of Civil Procedure, it could not be the subject of an exception, unless the court, in denying said motion, abused its discretional power and thereby prejudiced the essential rights of the respondents, which is not the case here.
The error which, in addition to the first two already mentioned, has been assigned by the opponent and appellant, Monica Naval, and refers, according to her, to the court's action in declaring that the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was not executed in such manner and from that it could transmit real and personal property, according to the provisions of section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in said assignment of error, that is, it is not true that the court declared that, because said will was not executed in the form required by law in order that it may transmit real and personal property, according to the provisions of section 618, the disallowance of said will also had the effect of annulling the revocatory clause therein contained. In the order appealed from there is no declaration or conclusion made in these terms. The court did not say that the annulment of the revocatory clause in said will was the effect or consequence of the fact that it was not allowed on the ground that it was not executed in the form required by law in order that it may transmit real and personal property. Referring to the construction, given by the respondent to sections 618 and 623 of the Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will, although the later will has not been allowed by the competent court, it being sufficient that the intention of the testator to revoke the previous will should be clearly expressed, and that, while the requisite of allowance is necessary in order that it may transmit property from one person to another, it is not necessary in order that it might procedure other effects, for example, the effect of a revocatory clause, or a clause of aknowledgment of a child, — what the court declared, we repeat, was that although the revocation of a will should have been effected, not by means of another will or codicil, but by mans of a document, as authorized by said section 623, which document should have the requisites and conditions fixed in section 618, the presentation of the document to the court was necessary in order that the latter might allow it, by declaring that it was executed with the formalities required by law for the execution of a will, and finally concluding that, just as to, is to be proved that the requisites of section 618 have been complied with in order that a will may be of value through its allowance, so without such allowance the revocatory clause like the other provisions of the will, has no value or effect except to show extraneous matters, as, for example, the acknowledgment of natural children, of some debt or obligation. In such case, the document could produce effect, but not as will, but simply as a written admission made by the person executing it. And It is beyond doubt that the revocatory clause contained in a document, like the present, which contains provisions proper of a will, as those relating to legacies and distribution of the properties of the testator after his death as well as the appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately connected with it as well as with the will or wills, the revocation of which is declared in said clause; in short, the desire of the testator declared in the revocatory clause is related to the desire of the same testator expressed in the provisions of the testament in which said clause is found and to that which he might have expressed in the testaments which he may have previously executed. There is such relation between the revocatory clause and the will which contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of the law, neither would the revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her as her last will and testament, ad declared by the court in its decision of November 19, 1915, in case No. 13386, for which reason its allowance was denied, neither may it be maintained that the revocatory clause contained in said will is the expression of the last will of said deceased. The disallowance of the ill, therefore, produced the effect of annulling the revocatory clause, not exactly because said will was not executed in such from that it could transmit real and personal property, as inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said assignment of error is based, but because it was proved that said will was not executed or signed with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will, according to section 634 of said law; and of course what is invalid in law can produce no effect whatever.
If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the statute. An instrument intended to be a will, but filing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited therein.)
A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted to probate before the clause of revocation can have any effect, and the same kind, quality, and method of proof is required for the establishment of the subsequent will as was required for the establishment of the former will. (40 Cyc., p. 1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not been executed, according to the provisions of said section 618 of the Code of Civil Procedure, should be considered as executed by her in order to express her desire, appearing in one of its clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the argument adduced by the appellant, Monica naval, in support of said assignment of error — neither could it be maintained that, the allowance of said will having been denied by the court on November 11, 1915, said revocatory clause subsists and the intention expressed by the testratrix therein is valid and legally effective, for the simple reason that, in order that a will may be revoked by a document, it is necessary, according to the conclusive provisions of section 623 of said procedural law, that such documents be executed according to the provisions relating to will in section 618, and the will in question, or, according to the respondent, the so-called document, was not executed according to the provisions of said section, according to the express finding of the trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is now final and executory. Therefore, the disallowance of said will and the declaration that it was not executed according to the provisions of law as to wills, produced the effect of annulling said revocatory clause.
In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512)m which, according to the appellant herself, was in the following terms:
If it be shown that a later will was duly executed and attested, containing a clause expressly revoking former will nothing else appearing as to its contents, it is nevertheless good as a revocation, but it can only be made available by setting it up in opposition to the probate of the earlier will.
In the decision of said case the finding referred to be by the appellant appears not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
When a will revoking a former will is in existence, it must be established in the Probate Court; but when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will revoked by it.:
And in the body of the decision there is a declaration, to which the appellant must have desired to refer in her brief, which declaration says:
If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will,. . .
The facts of the case in which this decision was rendered are different from the facts of the case at bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as her last will, to the allowance of which another son objected, alleging that said will had been revoked by another executed by the same deceased subsequent to the will that was filed, and that it had been
fraudulently destroyed or taken by his brother, the proponent and his wife, or by one of them, in order to deprive him of the rights conferred upon him by said will. Therefore, the will said to have been subsequently executed by the testatrix and in which, according to the oppositor, the clause revocatory of the former will appeared, was not presented by said oppositor, while the previous will was, in the contrary, filed for allowance by the son of the testratrix, who appeared to be favored therein, said oppositor having alleged that the subsequent will, that is, that containing the revocatory clause, had been drawn, subscribed and executed in accordance with the provisions of the law, a fact which he was ready to prove just as he was ready to prove that it had been destroyed or suppressed by the proponent, his brother and his wife, or one of them. In the case at bar, the subsequent will containing the revocatory clause of the previous will executed by the deceased Simeona F. Naval was presented to the court for allowance and it was disallowed — a fact which gave opportunity to the legatees of said deceased to present a previous will executed by her on October 31, 1914, and said two wills having been successively presented, evidence as to them was also successively adduced for their allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (supra), to the effect that a subsequent will containing a revocatory clause of previous wills, constitutes a valid revocation and may be used in objecting to the allowance of the previous will, even when it is not possible to obtain proof of the remainder of the contents of said subsequent will, refers to the case in which the latter had been taken away, destroyed or suppressed, and it was impossible to present it for allowance, but requires for that purpose that it be proved that said subsequent will has been executed, attested, and subscribed in due form and that it contained, furthermore, that revocatory clause. This is what said declaration and, in relation thereto, also what the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray, in giving its opinion, thus began by saying:
By our law, no will can be revoked by any subsequent instrument, other than a "will, codicil or writing, signed, attested and subscribed in the manner provided for making a will." And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be tried by a direct proceeding instituted for the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)
It results, therefore, that while perfect parity does not exist between the case decided by the Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and that which is not before us, it is wholly unquestionable that, whether the case deals with a subsequent will revocatory of a previous will, which may possibly be presented to a probate court for allowance, or of a subsequent will, also revocatory of a previous will, which could not be presented for allowance, because it has been taken or hidding, or mislaid — in order that such will may constitute a valid revocation and be utilized in the second case, although the remaining provisions may not be proven, in opposition to the allowance of the previous will, it is necessary to prove that it was executed, attested, and subscribed in due form, and, of course, also that it contained a clause expressly revoking the previous will, or, what is the same thing, that said subsequent will has been executed according to the provisions relating to wills, as expressed in section 623 of the procedural law in force. There can be no doubt whatever that this applies when the revocation had been made to appear in a writing or document susceptible of presentation for allowance, like the so-called will of the deceased Simeona F. Naval, dated February 13, 1915, and considered by said respondent and appellant as a mere document of revocation, for, as already seen in said decision invoked by her, the requisite as to signing, attesting, and subscribing in the form, required by law for the execution of wills in order that it may revoke a previous will, is also required in a will as well as in a codicil, or in a writing, and in referring to a document of revocation, it is also expressed that its validity should be proved in a direct proceeding, instituted for the purpose in a probate court. In the case at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and testament, dated February 13, 1915, has been presented for allowance; it validity has been proved by means of said procedure in the Court of Probate of Manila, and that court denied its allowance, on the ground that the document in question had not been duly executed by the deceased, as her last will and
testament, because she did not sign in the presence of three witnesses, and two of these witnesses did not sign in the presence of each other, or what is the same thing, that said document has not be attested and subscribed in the manner established by law for the execution of will, or, in other words, as provided by law in case of wills, as stated by section 623 of said procedural law, and this resolution was acquiesced in, as already stated, by the respondents in this case, and is, therefore, final and executory.
In conclusions, the doctrine laid down in the decision of the Supreme Court of Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the provision of said section 623 of our procedural law and article 739 of the Civil Code, and the will executed by the deceased Simeona F. Naval on October 31, 1914, not having been revoked, according to these provisions, by the will presented and alleged as executed by the same deceased subsequently on February 13, 1915, the allowance of which was denied by the Court of First Instance of Manila, the court below was not in error in ordering the allowance of said will, that is, of that of October 31, 1914, as the last will and testament of said deceased.
Wherefore, the order appealed from is affirmed, with the costs of this instance against the appellants. So ordered.
Arellano, C.J., Torres, Carson, Streets and Malcolm, JJ., concur.
