G.R. No. L-33592 March 31, 1931

Estate of the deceased Victorina Villaranda. EUSEBIA LIM, Petitioner-Appellant, vs. JULIANA CHINCO, oppositor-appellee.

STREET, J.:chanrobles virtual law l ibra ry

This is a contest over the probate of a paper writing purporting to be the will of Victorina Villaranda y Diaz, a former resident of the municipality of Meycauayan, Province of Bulacan, who died in the Hospital of San Juan de Dios, in the City of Manila, on June 9, 1929. The deceased left no descendants or ascendants, and the document produced as her will purports to leave her estate, consisting of properties valued at P50,000, more or less, chiefly to three collateral relatives, Eusebia, Crispina, and Maria, of the surname of Lim. This instrument was offered for probate by Eusebia Lim, named in the instrument as executrix Opposition was made by Juliana Chinco, a full sister of the deceased. Upon hearing the cause the trial court sustained the opposition and disallowed the will on the ground that the testatrix did not have testamentary capacity at the time the instrument purports to have been executed by her From this judgment the proponent of the will appealed.chanroblesvirtualawlibrarychanrobles virtual law libra ry

The deceased was a resident of Mercauayan, Province of Bulacan, and was about 80 years of age at the time of her death. On the morning of June 2, 1929, she was stricken with apoplexy, incident to cerebral hemorrhage, and was taken in an unconscious condition, seated in a chair, to her room. Doctor Geronimo

Z. Gaanan, a local physician of Meycauayan, visited the old lady, with whom he was well acquianted, three or four times, the first visit having occurred between 6 and 7 p. m. of June 3d. Upon examining the patient, he found her insensible and incapable of talking or controlling her movements. On the same day the parish priest called for the purpose of administering the last rites of the church, and being unable to take her confession, he limited himself to performing the office of extreme unction. Doctor Isidoro Lim, of Manila, was also called upon to visit the patient and he came to see her two or three times. With his approval, it was decided to take the woman to the hospital of San Juan de Dios in Manila, and on the morning of June 5, 1929, the ambulance from this hospital arrived, in charge of Doctor Guillermo Lopez del Castillo, a resident physician of the hospital. At about 11 c'clock a.m. on that day she was embarked on the ambulance and taken to the hospital, where she died four days later.chanroblesv irtualawlibra rychanrobles virtual law library

The purported will, which is the subject of this proceeding, was prepared by Perfecto Gabriel, a practicing attorney of Manila, whose wife appears to be related to the chief beneficiaries named in the will. This gentlemen arrived upon the scene at 9 o'clock on the forenoon of June 5, 1929. After informing

himself of the condition of the testatrix, he went into a room adjacent to that occupied by the patient and, taking a sheet from an exercise book, wrote the instrument in question. He then took it into the sick room for execution. With this end in view Gabriel suggested to Doctor Lopez del Castillo that he would be pleased to have Doctor Castillo sign as a witness, but the latter excused himself for the reason that he considered the old lady to be lacking in testamentary capacity. Another person present was Marcos Ira, a first cousin of the deceased, and attorney Gabriel asked him also whether or not he was willing to sign as one of the witnesses. Ira replied in a discouraging tone, and the attorney turned away without pressing the matter. In the end three persons served as witnesses, all of whom were in friendly relations with the lawyer, and two relatives of his wife. The intended testatrix was not able to affix her signature to the document, and it was signed for her by the attorney. chanroblesvirtua lawlibrary chanrobles virtual law l ibrary

The vital question in the case is whether the supposed testatrix had testamentary capacity at the time the paper referred to was signed. Upon this point we are of the opinion, as was the trial judge, that the deceased, on the morning of June 5, 1929, was in a comatose condition and incapable of performing any

conscious and valid act. The testimony of Doctor Gaanan and Doctor Lopez del Castillo is sufficient upon this point, and this testimony is well corroborated by Paciana Diaz and Irene Ahorro. The first of these witnesses was the one who chiefly cared for the deceased during her last illness in Meycauayan until she was carried away to the hospital in Manila; and the second was a neighbor, who was called in when the stroke of apoplexy first occurred and who visited the patient daily until she was removed from Meycauayan.chanroblesvirtua lawlibrary chanrobles virtual law l ibra ry

The testimony of these witnesses is convincing to the effect that the patient was in a continuous state of coma during the entire period of her stay in Meycauayan, subsequent to the attack, and that on the forenoon of June 5, 1929, she did not have sufficient command of her faculties to enable her to do any valid act. Doctor Lim, the physician from Manila, testified for the proponent of the will. His testimony tends to show that the patient was not suffering from cerebral hemorrhage but from uræmic trouble, and that, after the first attack, the patient was much relieved and her mind so far cleared up that she

might have made a will on the morning of June 5th. The attorney testified that he was able to communicate with the deceased when the will was made, and

that he read the instrument over to her clause by clause and asked her whether it expressed her wishes. He says that she made signs that enabled him to understand that she concurred in what was written. But it is clear, even upon the statement of this witness, that the patient was unable to utter intelligent speech. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper offered for probate was properly disallowed.chanroblesvirtualawlibra rychanrobles virtual law library

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

Avance�a, C.J., Johnson, Villamor and Villa-Real, JJ., concur. Malcolm and Johns, JJ., concurred, but being absent at the date of the promulgation of the opinion, their names do not appear signed thereto. - AVANCE�A,

C.J.

Separate Opinions

ROMUALDEZ, J., dissenting:chanrobles virtual law l ibra ry

I am of opinion that the will in question is genuine and that it was drawn up and signed with all the legal requisites; therefore, I vote for its allowance, and the consequent reversal of the judgment appealed from.

G.R. No. L-5263 February 17, 1954

AGUSTIN BARRERA, ET AL., proponents-appellants, vs. JOSE TAMPOCO, ET AL., oppositors-appellees.

Jesus G. Barrera for appellants. Filemon Cajator for appellees.

PARAS, C.J.:

Olivia Villapaña died in Tarlac, Tarlac, on December 13, 1948. On December 31, 1948, a petition was filed by Agustin Barrera in the Court of First Instance of Tarlac for the probate of the will executed by Olivia Villapaña on July 17, 1948, and for the appointment of the petitioner as executor. According to the petition the properties left by the testatrix are worth P94,852.96, and the heirs instituted are nephews and nieces and grandchildren in the collateral line. Jose Tampoco and Victoriano Tampoco, alleged grandchildren of the testatrix in the direct line, filed an opposition, claiming that the will was not executed and attested in accordance with the law, that the testatrix lacked testamentary capacity, that there was undue influence and pressure in its execution, that the signature of Olivia Villapaña was obtained by fraud and trickery, and that the testamentary provisions are illegal. Consorcia Lintang, Nemesio Villapaña, Marcos Villapaña, Jesus Villapaña, Vicente Villapaña, Ursulo Villapaña, Avelina Villapaña, and Rosario Villapaña, alleged nephews and nieces, also filed an opposition on substantially the same grounds on which the opposition of Jose and Victoriano Tampoco was based. After protracted trial, and

more than a year after submission of the case, a decision was rendered by the Court of First Instance of Tarlac on August 11, 1951, disallowing the will. The court found that Olivia Villapaña had testamentary capacity, that there was no forgery, fraud, trickery or undue influence in the execution of the will, and that petition of forced heirs is not a ground for denying probate; but the will was disallowed because it was not the personal last will and testament of the deceased and it was not based on the finding that Olivia Villapaña did not furnish the names of the persons instituted as heirs and that the will was not read to her before she signed it. The second ground is premised on the conclusion that attesting witness Laureano Antonio was not present when Olivia Villapaña and attesting witness Honorio Lacson signed the will; that Antonio only partially saw the signing by attesting witness Modesto Puno; and that Olivia Villapaña saw Antonio sign only two or three times. From this decision the petitioner has appealed.

According to appellant's evidence, two or three days before July 10, 1948, Pilar Tañedo called on Modesto Puno, a lawyer and justice of the peace of Concepcion, Tarlac, and requested the latter to come to Manila for a conference with Olivia Villapaña, aunt of Pilar. On July 10, 1948, Atty. Puno, complying with the request, went to the house of Pilar Tañedo in Singalong Street where Olivia was staying. The latter, after preliminary greetings and courtesies, informed Atty. Puno that she wanted him to prepare her will, giving the names of the heirs and the properties to be left. Olivia Villapaña asked Atty. Puno to get the description of the properties from the herein appellant, Agustin Barrera, husband of Pilar Tañedo. Atty. Puno noted the wishes of Olivia, and, as there was then no available typewriter, he informed the old woman that he would prepare the will in his office in Concepcion and come back with it on the following Saturday. As promised, on or July 17, 1948, Atty. Puno returned to the house of Olivia Villapaña in Singalong, carrying with him one original and three copies, in typewritten form, of the will he drafted in accordance with the instructions of Olivia Villapaña. Atty. Puno arrived about noon. He read the will to Olivia to find out whether it conformed to her wishes, and she indicated that it was all right. After lunch Atty. Puno manifested that two other witnesses were necessary, whereupon Pilar Tañedo requested Honorio Lacson and Laureano Antonio, who were then living in the first floor of the house, to come up. Lacson and Antonio did as requested. Olivia Villapaña, Atty. Puno, Lacson and Antonio were then seated around a small rectangular table insala, and at this juncture Atty. Puno gave a copy of the will to Olivia, Lacson and Antonio, while he retained one. The Attorney again read the will aloud, advising the rest to check their respective copies. As Olivia Villapaña agreed to the will, she proceeded to sign all the four copies, on the lines previously placed by Atty. Puno, followed successively by Lacson, Atty. Puno and Antonio, all in the presence of each other. After the signing, Atty. Puno gave the original and a copy to Olivia, and retained the other two copies. Atty. Puno , Lacson and Antonio stayed for a while even ate merienda prepared by the sisters Pilar and Beatriz Tañedo. Olivia Villapaña delivered her will to Agustin Barrera for safekeeping on October 17, 1948 when she was taken to the U.S.T. Hospital where she remained until November 7, 1948. On this date her doctors lost all hope for her recovery and Olivia Villapaña was brought to Tarlac, Tarlac, her hometown, where, as already stated, she died on December 13, 1948.

According to the evidence for the oppositors-appellees, the will presented in the court by the petitioner was not executed in accordance with law, in that attesting witness Laureano Antonio did not see the testatrix and attesting witness Lacson sign the will or any of its copies, that he saw Atty. Puno when the latter was already half thru signing the document, and that the testatrix did not see Antonio sign all the copies.

After a thorough study of the record and mature reflection on the conflicting evidence, we are constrained to conclude that the trial court erred in denying probate of the will.

Of the three attesting witnesses, namely, Atty. Modesto Puno, Honorio Lacson, and Laureano Antonio, the first two testified positively that the will was signed by the testatrix and the three witnesses in the presence of each other, and that it was read to the testatrix before being signed. In view of the opposition filed by the two sets of oppositors , the third attesting witness, Laureano Antonio, had to be presented by the petitioner but, contrary to expectations, Antonio testified that he arrived at the scene of the execution of the will after testatrix and Honorio Lacson had already signed and after Atty. Puno was half through affixing his signatures, and that the testatrix left before Antonio finished signing all the copies. By numerical superiority alone, the weight of the testimony of Atty. Puno and Honorio Lacson outbalances the probative value of the testimony of Laureano Antonio. Intrinsically, we cannot state that Laureano Antonio spoke the truth on the witness stand, since, in the first place, the attestation clause signed by him contradicts his pretense and, in the second place, there is enough evidence on the record to show that in his conferences with Atty. Barrera before taking the witness stand, Antonio never gave the slightest indication that he was not present when the testatrix left before Antonio finished signing. Modesto Puno is a lawyer and at the time a justice of the peace, and it is improbable that he would unnecessarily risk his honor and reputation. Indeed, the trial court gave the impression that Atty.

Puno was anxious to strictly meet the requirements of the law and in the absence, as in the case at bar, of any reason for a hasty completion, we do not believe that Atty. Puno would have allowed the signing of the will to be proceeded with unless three attesting witnesses were already present. On the other hand, we can fairly state that there was in fact no hurry on the part of any of the participants in the will, because the testatrix Olivia Villapaña was not dying (she died some five months after the execution of the will) and the parties could therefore take all the time that they wanted, Indeed, none of the three witnesses, left the house of Olivia Villapaña and they even stayed therein until after merienda time.

The fact that Atty. Puno id the brother of Jose Puno who is the husband of Carmen Tañedo, one of the beneficiaries of the will, and that Honorio Lacson is the husband of Bibiana Lacson who is a first cousin of Agustin Barrera, herein petitioner and husband of Pilar Tañedo, is not sufficient to make then biased witnesses. If Atty. Puno had any material interest, this fact should have caused him to be more careful in seeing to it that the formalities of the law were strictly complied with, and this should be true with respect to Honorio Lacson.

In deciding against the probate of the will, the trial court believed the testimony of Laureano Antonio to the effect that he arrived at the place of the signing at about 2:30 in the afternoon, and thereby found that a greater part of the proceeding was finished, because Atty. Puno declared in one place that "the signing of the testament commenced around between one o'clock and two o'clock" and in another place that the signing took place "around two and three o'clock," and Honorio Lacson declared that he was called by Pilar Tañedo to act as witness at around two o'clock or two thirty. From the testimony of Atty. Puno and Honorio Lacson the court concluded that the signing actually commenced between one and two o'clock. We are of the opinion that the specification of the time of the signing refers to an immaterial or unimportant detail which, in view of the lapse of time, might have been a mistake by one or the other participant in the execution of Oliva's will. What is important and decisive — and this should be impressed in the mind of an attorney preparing and taking charge of the signing of will, — is that the testatrix and each of the three attesting witnesses must affix their signatures in the presence of one another. In the case before us, Atty. Puno and Honorio

Lacson both attesting witnesses, categorically affirmed that this procedure was followed. At any rate, even under the testimony of Atty. Puno and Honorio Lacson, the signing could have taken place at about or after two thirty, since the former declared that it took place between two and three o'clock and Honorio Lacson stated that the time was two or two thirty. another point invoked by the trial court against the probate of the will is the circumstance that, while Atty. Puno testified that he placed the lines on which the testatrix and the witnesses were to sign before he read the document to the testatrix whom he gave the original witness Lacson testify that Atty. Puno read the original after giving a copy to the testatrix, and after reading Atty. Puno placed the lines for signatures. The discrepancy again refers to a minor detail which is not sufficient to negative the truthfulness of Atty. Puno and Honorio Lacson on the main and important fact that the will was signed by the testatrix and the three attesting witnesses in the presence of each other.

Oppositors-appellees presented in corroboration of the testimony of Laureano Antonio, Joaquin Villapaña and Consolacion del Mundo. Joaquin Villapaña, a painter allegedly was then the maid of Oliva Villapaña. Apart from the fact that there is evidence to show that both Joaquin Villapaña and Consolacion del Mundo were not yet employed in the house of Oliva when the latter's will was executed, there is little or no reason for their version to prevail over the positive testimony is even corroborated by two other witnesses, Bibiana Lacson and Beatriz Tañedo. Certainly the story of Joaquin Villapaña and Consolacion del Mundo can have no greater weight than that of Laureano Antonio.

In the holding that the will was not that of Oliva Villapaña, the trial court found that it was not read to her; and this finding was premised on the alleged contradiction of Atty. Puno and Honorio Lacson regarding the sequence of the reading of the will and the placing of the lines for signatures, and regarding the question whether a copy or the original was handed to the testatrix. As we have already observed, the discrepancy relates to an insignificant matter which cannot vitally detract from the credibility of Atty. Puno to the effect that upon arrival at the house of Oliva Villapaña at about noon, he read the will to her with a view to finding whether she was agreeable thereto. It is not necessary that said will be read upon its signing and in the presence of the witnesses.

The trial court also concluded that the testatrix could not have furnished the names of the heirs instituted under the will, because (1) Salvador Tañedo, one of such heirs, was long dead and (2) Marcelo Villapaña, another instituted heir, was non-existent, since Oliva Villapaña did not have a grandson by such name. It is true that Salvador Tañedo was already dead and the testatrix knew about it, but it is not uncommon for a woman of old age, confused by the big number of her relatives, to commit the mistake of unwittingly mentioning a dead one. With respect to the instituted heir, Marcelo Villapaña, while it appears that Oliva did not have a grandson answering to that name, there is evidence tending to show that Pioquinto Villapaña, a child of Ruperta Pineda, must have been reffered to, because Oliva, who was the child's god-mother, originally wanted said child to be baptized as Marcelo, after his father. Moreover, if Atty. Puno had supplied the names instituted as heirs, he would have consulted all the interested parties and would be sure that no mistake of the kind was made.

As a closing observation, it is not for us to discover the motives of Oliva Villapaña in leaving her properties to the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state that the trial court itself found the will to have been executed free from falsification, fraud, trickery or undue influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give expression to her will.

Wherefore, the appealed order is reversed and the will executed by Oliva Villapaña on July 17, 1948, is hereby allowed. So ordered without costs.

Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, and Labrador, JJ., concur.

G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs. COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads:

WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate.

Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court.

SO ORDERED. 3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said win, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate.

After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will.

Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8

On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter.

The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law.

In the petition now before Us, petitioner assigned the following errors:

I

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.

III

AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA.

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION.

V

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE.

In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.

In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative.

On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.

Section 1, Rule 53 provides —

Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence.

The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed;

5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the testatrix;

xxx xxx xxx 13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discover said evidence. 15

In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented win not carry much probative weight which can alter the judgment. 17

It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18This would explain the haphazard preparation of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20

At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.

During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix.

In the case of Pecson v. Coronel, 24 it was held —

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889...

Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will.

Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind.

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs.

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.

Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate. 27

The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised.29

Finally, We quote with approval the observation of the respondent court —

There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as:

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

4. presence of natural variation... (Exhibit X).

The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Grino-Aquino, JJ., concur.

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and

have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and thecharacter 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 (Citations 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:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

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

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees. Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the

amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY CHRISTENSEN DANEY.

x x x x x x x x x

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted..

x x x x x x x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute dominion over his property is sacred and inviolable (In re McDaniel's

Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:

I

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.

V

THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äw phï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he might properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29)

The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows:

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the meaning of the term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The decision of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.

The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of therenvoi, the question of the validity of the testamentary provision in question should be referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule of reference.

Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If both reject, or both accept the doctrine, the result

of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have been against the woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would happen, though the courts would switch with respect to which would hold liability, if both courts accepted the renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this property should be distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course, thus applying its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a question which, while it has been considered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and essayists; and the doctrine involved has been descriptively designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoiis that the court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoi has generally been repudiated by the American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law.

x x x x x x x x x

Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred.

(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same system of law.

x x x x x x x x x

If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of nationality — that is the English law — he must accept this reference back to his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil

Code, then we must enforce the law of California in accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees.

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

G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.

J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares. 1äw phï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.

On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply — Texas law or Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —

ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as

Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory

still be given effect? This is the issue that arose from the following antecedents:

Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her

estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro’s death, petitioner, who claims to have taken care

of Alejandro before he died, filed a special proceeding for the probate of the latter’s last will and testament. In 1981, the court

issued an order admitting Alejandro’s will to probate. Private respondents did not appeal from said order. In 1983, they filed a

“Motion To Declare The Will Intrinsically Void.” The trial court granted the motion and issued an order, the dispositive portion of

which reads:

“WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro

Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors

Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta

Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and

other taxes due to the government.”[1]

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to

his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner

appealed to the Court of Appeals, but the same was dismissed for failure to file appellant’s brief within the extended period

granted.[2] This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith

issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and

executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to

them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the

TCT’s, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner

opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January

30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely

“interlocutory”, hence not final in character. The court added that the dispositive portion of the said Order even directs the

distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an

Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two

assailed Orders dated November 29, 1990 and February 1, 1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of

Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in

issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the

case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which

declared the intrinsic invalidity of Alejandro’s will that was earlier admitted to probate.

Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or

lease of the premises thereon to third parties.[3] Private respondents opposed the motion on the ground that petitioner has no interest

in the estate since she is not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how

erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry

of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a

superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final

judgment on probated will, albeit erroneous, is binding on the whole world.[4]

It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains

finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order

can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and

the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in

connection therewith being for once and forever closed.[5] Such final order makes the will conclusive against the whole world as to its

extrinsic validity and due execution.[6]

It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be

probated,[7] particularly on three aspects:

ð whether the will submitted is indeed, the decedent’s last will and testament;

ð compliance with the prescribed formalities for the execution of wills;

ð the testamentary capacity of the testator;[8]

ð and the due execution of the last will and testament.[9]

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the

time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that

the will is genuine and not a forgery,[10] that he was of the proper testamentary age and that he is a person not expressly prohibited by

law from making a will.[11]

The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been

authenticated.[12] Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically

valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their

legitime or rightful inheritance according to the laws on succession,[13] the unlawful provisions/dispositions thereof cannot be given

effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically

void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not

that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to

challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by

law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or

court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared

that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time

fixed by law[14] become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium - the very object of which the

courts were constituted was to put an end to controversies.[15] To fulfill this purpose and to do so speedily, certain time limits, more or

less arbitrary, have to be set up to spur on the slothful.[16] The only instance where a party interested in a probate proceeding may

have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or

inadvertence not imputable to negligence,[17] which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an

unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were

declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same

constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those

matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also

occurs when the same issue had already been resolved adversely by some other court.[18] It is clear from the executory order that the

estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In

support thereof, petitioner argues that “an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot

be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been

filed.”[19] The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are

his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same

Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has

no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the

same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to

intestacy.[20] But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law

considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the

transfer of the estate is usually onerous in nature and that no one is presumed to give - Nemo praesumitur donare.[21] No intestate

distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is

extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to

determine its intrinsic validity – that is whether the provisions of the will are valid according to the laws of succession. In this case,

the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of

intestacy apply as correctly held by the trial court.

Furthermore, Alejandro’s disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he

described as his “only beloved wife”, is not a valid reason to reverse a final and executory order. Testamentary dispositions of

properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given

effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly

ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse’s estate.

Petitioner’s motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro

and, therefore, is not an heir.

WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

FELIX AZUELA, G.R. No. 122880

Petitioner,

Present:

QUISUMBING, J.,

Chairperson,

- versus - CARPIO,

CARPIO MORALES, and

TINGA, JJ.

COURT OF APPEALS,

GERALDA AIDA CASTILLO Promulgated:

substituted by ERNESTO G.

CASTILLO, April 12, 2006

Respondents.

x----------------------------------------------------------------------------x

D E C I S I O N

TINGA, J.:

The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent),

who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of this

document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial

wills, all self-evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is written is fatally

defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And

perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally

defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just

aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for

the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under Article 805 of

the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise

imposes another safeguard to the validity of notarial wills — that they be acknowledged before a notary public by the

testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to

nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila.

The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which

was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang,

nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayagna 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) nghabiling 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 bahayna 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 inoopa

han 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-10ng 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 kaminamang 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 ngkasulatan 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 HulingHabilin, 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 nglahat 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 kasulatanat

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]

InUy 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 decidendiof these cases seems to be that the attestation clause must contain a statement of the

number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of

invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or

examination of the will itself. But here the situation is different. While the attestation clause does not state

the number of sheets or pages upon which the will is written, however, the last part of the body of the will

contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out

of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal

view has been adopted to prevent the will of the testator from being defeated by purely technical

considerations.” (page 165-165, supra) (Underscoring supplied) In “Apolonio Tabaoda versus Hon. Avelino Rosal, et al.” supra, the notarial acknowledgement in the Will states the

number of pages used in the:

“x x x We have examined the will in question and noticed that the attestation clause failed to state the

number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in

this case, it is discernible from the entire will that it is really and actually composed of only two pages duly

signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the

entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the

instrumental witnesses signed at the left margin. The other page which is marked as “Pagina dos” comprises

the attestation clause and the acknowledgment. The acknowledgment itself states that “this Last Will and

Testament consists of two pages including this page” (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will

does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated.[21]

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the

statutory provision governing the formal requirement of wills was Section

618 of the Code of Civil Procedure.[22]

Reliance on these cases remains apropos, considering that the requirement that

the attestation state the number of pages of the will is extant from Section 618.[23]

However, the enactment of the Civil

Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation

clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code

states: “In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and

imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved

that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.”

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that “the underlying and

fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the [liberalization] of

the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes.

This objective is in accord with the [modern tendency] in respect to the formalities in the execution of

wills.”[24]

However, petitioner conveniently omits the qualification offered by the Code Commission in the very same

paragraph he cites from their report, that such liberalization be “but with sufficient safeguards and restrictions to

prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.”[25]

Caneda v. Court of 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]

(Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that

the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot be simply

disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state

that the witnesses subscribed their respective signatures to the will in the presence of the testator and of each

other,[30]

the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: “[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied

by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,

correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions

which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and

ultimately, of the will itself.”[31]

Thus, a failure by the attestation clause to state that the testator signed every page can

be liberally construed, since that fact can be checked by a visual examination; while a failure by the attestation clause

to state that the witnesses signed in one another’s presence should be considered a fatal flaw since the attestation is the

only textual guarantee of compliance.[32]

The failure of the attestation clause to state the number of pages on which the will was written remains a fatal

flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will

is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any

increase or decrease in the pages.[33]

The failure to state the number of pages equates with the absence of an averment

on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had

ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if

the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada.

However, in this case, there could have been no substantial compliance with the requirements under Article 805 since

there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise

the will.

At the same time, Article 809 should not deviate from the need to comply with the formal requirements as

enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating

Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in

Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or

intercalation of notarial wills.[34]

Compliance with these requirements, however picayune in impression, affords the

public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the

manner established in the will.[35]

The transcendent legislative intent, even as expressed in the cited comments of

the Code Commission, is for the fruition of the testator’s incontestable desires, and not for the indulgent

admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself

reveals a couple of even more critical defects that should necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the

instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the attestation

clause which after all consists of their averments before the notary public.

Cagro v. 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 Lungsodng 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.

BRIGIDO ALVARADO, CESAR ALVARADO vs. RAMON G. GAVIOLA, JR., ET AL.

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,

vs.

HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate

Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now

Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and

testament 3 with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled “Huling Habilin” wherein he disinherited an illegitimate son

(petitioner) and expressly revoked a previously executed holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of sta.

Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read

the final draft of the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged document, read the same aloud in the presence of

the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective copies previously furnished

them.

Meanwhile, Brigido’s holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled

“Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing

some dispositions in the notarial will to generate cash for the testator’s eye operation. Brigido was then suffering from glaucoma. But the disinheritance and

revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private

respondent who read it aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary

public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator’s death on 3 January 1979 by private respondent as executor with the

Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought

to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a will at the time

of its execution due to senility and old age; that the will was executed under duress, or influence of fear and threats; that it was procured by undue and

improper pressure and influence on the part of the beneficiary who stands to get the lion’s share of the testator’s estate; and lastly, that the signature of the

testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an

appeal was made to respondent court. The main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his “Huling

Habilin” and the codicil attached thereto was executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with,

probate of the deceased’s last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last

will and codicil were executed; that assuming his blindness, the reading requirement of Art. 808 was substantially complied with when both documents were

read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their respective copies of the

instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of

making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at the time his “Huling Habilin” and its codicil were

executed? If so, was the double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed.

However, his vision on both eyes was only of “counting fingers at three (3) feet” by reason of the glaucoma which he had been suffering from for several

years and even prior to his first consultation with an eye specialist on

14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a “blind” testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom

the will is acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the

term as it is used in Art. 808. To support his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director

of the Institute of Opthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman’s terms by Dr. Ruperto Roasa, whose

expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer

read either printed or handwritten matters as of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were

executed but chose not to do so because of “poor eyesight.” 9 Since the testator was still capable of reading at that time, the court a quoconcluded that Art.

808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent’s staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains

and this was testified to by his witnesses, that Brigido did not do so because of his “poor,” 10 “defective,” 11 or “blurred” 12 vision making it necessary for

private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term “blindness” as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to

make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are “incapable of reading the(ir)

will(s).” Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his “poor,”

“defective,” or “blurred” vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term “blind” as it is

used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so

confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had

been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the

notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before

signing and to give him an opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who

drafted the eight-paged will and the five-paged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand,

petitioner maintains that the only valid compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental

witness read the contents of the will and codicil to Brigido, probate of the latter’s will and codicil should have been disallowed.

We sustain private respondent’s stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that

the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid

and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator’s will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the

notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did

the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will and codicil were not

sufficiently made known and communicated to the testator. On the contrary, with respect to the “Huling Habilin,” the day of the execution was not the first

time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado

already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the

testator’s residence precisely for the purpose of securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on

5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards,

Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator’s physician) asked the

testator whether the contents of the document were of his own free will. Brigido answered in the affirmative. 16 With four persons following the reading word

for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those which he affirmed were

in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that

the three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being

known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in

order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into

account, may only defeat the testator’s will. 17

As a final word to convince petitioner of the propriety of the trial court’s Probate Order and its affirmance by the Court of Appeals, we quote the following

pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and

testaments and to guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial

ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to

make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites

entirely unnecessary, useless and frustrative of the testator’s will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his “Huling Habilin” and the codicil attached thereto. We are unwilling to

cast these aside fro the mere reason that a legal requirement intended for his protection was not followed strictly when such compliance had been rendered

unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft of his will, had already been

accomplished. To reiterate, substantial compliance suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of

time that this case has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent.

Natividad T. Perez for petitioner.

Benedicto T. Librojo for private respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.

We grant the petition.

II

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:

If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that I predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption (Rollo, p. 41).

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband. Article VIII of her will states:

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. (Rollo, p. 31).

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.

On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration.

As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52.

On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983.

Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113).

On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses.

Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160).

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185).

Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248).

On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.

On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments.

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records, p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985.

On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381).

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect.

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393).

On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).

On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405-407).

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).

Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings.

II

Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G");

(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1");

(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");

(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");

(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");

(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F").

(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1");

(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");

(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10");

(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5");

(k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and

(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other’s signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).

Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative.

The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding."

A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.

SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ., concur.

Cruz, J., is on leave.