SURUZA VS HONDRADO

110 SCRA 388 Succession Will Should be Written in a Language Known to the TestatorFACTS: In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in the said will and she petitioned before CFI Rizal that the will be admitted to probate. The presiding judge, Honrado admitted the will to probate and assigned Paje as the administratrix. Honrado also issued an ejectment order against the occupants of the house and lot subject of the will.

Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in the Veterans Hospital), learned of the probate proceeding when she received the ejectment order (as she was residing in said house and lot).

Nenita opposed the probate proceeding. She alleged that the said notarial will is void because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is written in English a language not known to Marcelina because the latter was illiterate so much so that she merely thumbmarked the will, (d) the notary public who notarized will admitted that Marcelina never appeared before him and that he notarized the said will merely to accommodate the request of a lawyer friend but with the understanding that Marcelina should later appear before him but that never happened.

Honrado still continued with the probate despite the opposition until testamentary proceeding closed and the property transferred to Marilyn Sy.

Nenita then filed this administrative case against Honrado on the ground of misconduct.

ISSUE:Whether or not Honrado is guilty of misconduct for admitting into probate a void will.

HELD:Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance.

The will is written in English and was thumb marked by an obviously illiterate Marcelina. This could have readily been perceived by Honrado that that the will is void. In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Had Honrado been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to Agapito who was still alive.

Honrado was fined by the Supreme Court.

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

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELISTA S. YUIPCO, Deputy Clerk of Court, respondents.

SYNOPSIS

Complainant wife of the preterited heir filed a verified complaint in the Supreme Court against respondent Judge for having probated an alleged fraudulent will of the decedent Marcelina Salvador Suroza naming a supposed granddaughter as the sole heir and giving nothing at all to her supposed father who was still alive, and for having allowed the administratrix and her cohorts to withdraw from various banks, the deposits of the testatrix. Said will was written in English, a language not known to the illiterate testatrix and probably forged because the testatrix and the attesting witnesses did not appear before the notary as admitted by the notary himself. Complainant also denounced deputy clerk of court Yuipco for not giving her access to the record of the probate case and for insinuating that for ten thousand pesos the case might be decided in complainant's favor. In their comment, respondent Judge merely pointed out that the complainant did not appeal from the decree of probate and that upon being ejected the latter asked for a thirty-day period to vacate the house of the testatrix, while respondent Yuipco vehemently denied the charges against her. The case was referred for investigation, report and recommendation to Justice Juan A. Sison of the Court of Appeals who submitted a report dated October 7, 1951. Relying on the decision of the Court of Appeals dismissing complainant's petition for certiorari and prohibition, respondent Judge filed a motion to dismiss the administrative case for having allegedly become moot and academic.

The Supreme Court ruled that respondent Judge was guilty of inexcusable negligence and dereliction of duty for his unproper disposition of the testate case which might have resulted in a miscarriage of justice and imposed upon him a fine equivalent to his salary for one month. The case against respondent Yuipco was held as having become moot and academic in view of her being beyond the Court's disciplinary jurisdiction because she is no longer employed in the judiciary.

SYLLABUS

1.CONSTITUTIONAL LAW; SUPREME COURT SUPERVISION OVER LOWER COURTS; ADMINISTRATIVE CASE AGAINST JUDGES; REQUIREMENTS TO BE FOUND GUILTY OF SERIOUS MISCONDUCT OR INEFFICIENCY. Administrative action may be taken against a judge of the court of first instance for serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules (In re Impeachment of Horrilleno, 43 Phil. 212, 214-215).

2.ID.; ID.; ID.; ID.; INEFFICIENCY DEFINED. Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 35 SCRA 107, 119).

3.ID.; ID.; ID.; ID.; CIRCUMSTANCES IN THE CASE AT BAR SHOWING NEGLIGENCE AND DERELICTION OF DUTY. In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is shown in the attestation clause and notarial acknowledgment where the testatrix is repeatedly referred to as the "testator" instead of "testatrix", that he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive, that after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness, and that in spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

4.ID.; ID.; ID.; ID.; INSUFFICIENCY IN HANDLING THE TESTATE CASE; PENALTY; CASE AT BAR. For inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent judge.

5.ID.; ID.; ID.; ADMINISTRATIVE COMPLAINT AGAINST DEPUTY CLERK OF COURT; BECOMES MOOT AND ACADEMIC WHEN RESPONDENT IS NO LONGER EMPLOYED IN THE JUDICIARY; CASE AT BAR. The case against respondent Deputy Clerk of Court has become moot and academic because she is no longer employed in the judiciary. Since September 1, 1980, she has been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21, 1980, 101 SCRA 225).

D E C I S I O N

AQUINO, J p:

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

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

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

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

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

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

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

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

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. That will, which is in English, was thumb marked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case)

On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina (p. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administrative. On the following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina.Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testratrix's house, among whom was Nenita V. Suroza, and to place Marina in possession thereof.That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said proceedings a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment order.

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

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

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

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

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

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

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

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of administration because of the nonappearance of her counsel at the hearing. She moved for the reconsideration of that order.In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza reiterated her contention that the alleged will is void because Marcelina did not appear before the notary and because it is written in English which is not known to her (pp. 208, 209, Record).

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

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

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.About ten months later, in a verified complaint dated October 12,1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix)

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

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

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

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

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

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

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

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

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

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

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 29. 1981)

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

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

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

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

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

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

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

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

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness.In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed.

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

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

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

ACOP VS. PIRASO52 Phil 660FACTS:1. The CFI of Benguet denied the probate of the last will and testament of the deceased Piraso because the will sought to be probated was written in English.2. Evidence showed that Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect.3. Proponent-appellant Sixto Acop alleged that the lower court erred in not holding that the testator did not know the Ilocano dialect well enough to understand a will drawn up in said dialect.

ISSUE:Should the will be probated?

HELD:The testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary.

In the instant case, not only is it not proven the English is the language of the City of Baguio where the deceased Piraso lived and where the will was drawn, but the record contains positive proof that said Piraso knew no other language than the Igorotte dialect, with a smattering of Ilocano; that is, he did not know the English language in which the will is written.

Gonzales v. CAG.R. No. L-37453 May 25, 1979Guerrero, J. (Ponente)Facts:

1. Petitioner Rizalina Gonzales and Lutgarda Santiago (Private respondent) are the nieces of the deceased Isabel Gabriel who died a widow. A will was thereafter submitted to probate. The said will was typewritten, in Tagalog and appeared to have been executed in April 1961 or two months prior to the death of Isabel. It consisted of 5 pages including the attestation and acknowledgment, with the signature of testatrix on page 4 and the left margin of all the pages.

2. Lutgarda was named as the universal heir and executor. The petitioner opposed the probate.

3. The lower court denied the probate on the ground that the will was not executed and attested in accordance with law on the issue of the competency and credibility of the witnesses.

Issue: Whether or not the credibility of the subscribing witnesses is material to the validity of a will

RULING: No. The law requires only that witnesses posses the qualifications under Art. 820 (NCC) and none of the disqualifications of Art. 802. There is no requirement that they are of good standing or reputation in the community, for trustworthiness, honesty and uprightness in order that his testimony is believed and accepted in court. For the testimony to be credible, it is not mandatory that evidence be established on record that the witnesses have good standing in the the community. Competency is distinguished from credibility, the former being determined by Art. 820 while the latter does not require evidence of such good standing. Credibility depends on the convincing weight of his testimony in court.

[G.R. No. L-4888. May 25, 1953.]

JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS, respondent.

Primicias, Abad, Mencies & Castillo for petitioner.

Moises Ma. Buhain for respondent.

SYLLABUS

1.WILLS; PROBATE OF DEFECTIVE WILLS; PHRASE "IN OUR PRESENCE", EXPLAINED. Written in the local dialect known to the testatrix, the attestation clause, as translated into English in the record on appeal reads: "The foregoing instrument consisting of three (3) pages, on the date above mentioned, was executed, signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and testament; that in our presence and also in the very presence of the said testatrix as likewise in the presence of two witnesses and the testatrix each of us three witnesses signed this testament." The opponent objected that this clause did not state that the testatrix and the witnesses had signed each and every page of the will or that she had signed the instrument in the presence of the witnesses. Held: Considering that the witnesses' only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors in the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the phrase "in our presence", used as it was in connection with the process of signing, can not imply anything but that the testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could be no other than signed and the subject no other than the testatrix. The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses signed in the presence of the testatrix and of one another, the testatrix signed similarly or in like manner in their presence.

2.ID.; STATUTORY CONSTRUCTION; ATTESTATION CLAUSE; LIBERAL INTERPRETATION. In consonance with the principle of liberal interpretation, adhered to in numerous later decisions of the Supreme Court and affirmed and translated into enactment in the New Civil Code (Article 827) the attestation clause of the will in the case at bar is sufficient and valid.

3.ID.; SIMPLE LANGUAGE USED IN THE ATTESTATION CLAUSE. Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it. (Ticson vs. Gorostiza, 57 Phil. 437).

4.ID.; WHEN TWO DISTINCT WILLS ARE PROBATED SEPARATELY. Two separate and distinct wills may be probated if one does not revoke the other and provided that the statutory requirements relative to the execution of wills have been complied, with.

5.ID.; DISINHERITANCE NEED NOT BE ACCOMPLISHED IN THE SAME WILL. Article 849 of the Civil Code of Spain does not require that the disinheritance should be accomplished in the same instrument by which the maker provides for the disposition of his or her property after his or her death; it merely provides that "disinheritance can be effected only by a will (any will) in which the legal cause upon which it is based is expressly stated."

D E C I S I O N

TUASON, J p:

This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of Zambales denying the probate of the last will and testament and a so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix was survived by her husband and collateral relatives, some of whom, along with the husband, were disinherited in Exhibit B for the reasons set forth therein.

The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the local dialect known to the testatrix, the attestation clause, as translated into English in the record on appeal reads:

"The foregoing instrument consisting of three pages, on the date above-mentioned, was executed, signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and testament; that in our presence and also in the very presence of the said testatrix as likewise in the presence of two witnesses and the testatrix each of us three witnesses signed this testament."

The opponent objected that this clause did not state that the testatrix and the witnesses had signed each and every page of the will or that she had signed the instrument in the presence of the witnesses. The Appellate Court dismissed the first objection, finding that "failure to state in the attestation clause in question that the testatrix and/or the witnesses had signed each and every page of Exhibit A were cured by the fact that each one of the pages of the instrument appears to be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil., 437, (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But granting the correctness of the premise, the court held the second objection well taken and thus concluded: "The question whether the testatrix had signed in the presence of said witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the required statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by proof aliunde even if admitted without objection."

The premise of this conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poorly drawn, its language exceedingly ungrammatical to the point of being difficult to understand; but from a close examination of the whole context in relation to its purpose the implication seems clear that the testatrix signed in the presence of the witnesses. Considering that the witnesses' only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors in the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the phrase "in our presence," used as it was in connection with the process of signing, can not imply anything but that the testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could be no other than signed and the subject no other than the testatrix.

The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses signed in the presence of the testatrix and of one another, so the testatrix signed in similar or like manner in their presence.

In consonance with the principle of liberal interpretation, adhered to in numerous later decisions of this Court and affirmed and translated into enactment in the new Civil Code (Article 827), we are constrained to hold the attestation clause under consideration sufficient and valid.

"Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.)

"It could not have been the intention of the legislature in providing for the essential safeguards in the execution of a will to shackle the very right of testamentary disposition which the law recognizes and holds sacred." (Leynes vs. Leynes, supra.)

With reference to Exhibit B the Court of Appeals agreed with the trial court that the document having been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the contents of Exhibit B are couched in the language ordinarily used in a simple affidavit and as such, may not have the legal effect and force of a testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any instrument other than the will Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple affidavit."

Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil Code of Spain as "the act by which a person disposes of all his property or a portion of it," and in article 783 of the new Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death." Exhibit B comes within this definition.

Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate as an independent testamentary disposition. In the absence of any legal provision to the contrary - and there is none in this jurisdiction it is the general, well-established rule that two separate and distinct wills may be probated if one does not revoke the other (68 C. J., 885) and provided that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As seen, Exhibit B embodies all the requisites of will, even free of such formal or literary imperfections as are found in Exhibit A.

It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to insinuate, require that the disinheritance should be accomplished in the same instrument by which the maker provides for the disposition of his or her property after his or her death. This article merely provides that "disinheritance can be effected only by a will (any will) in which the legal cause upon which it is based is expressly stated."

It is our judgment therefore that the instruments Exhibits A and B should be admitted to probate, subject of course to the right of the disinherited person under article 850 to contest the disinheritance, and it is so ordered, with costs against the appellee.

[G.R. No. L-12207. December 24, 1959.]

JUAN PALACIOS, petitioner-appellant, vs. MARIA CATIMBANG PALACIOS, oppositor-appellee.

Augusto Francisco and Vicente Reyes Villavicencio for appellant.

Laureano C. Alano and Enrique A. Amador for appellee.

SYLLABUS

1.WILLS; PROBATE DURING LIFETIME OF TESTATOR; OPPOSITION TO INTRINSIC VALIDITY OF THE WILL NOT ALLOWED. Opposition to the intrinsic validity or to the legality of the provisions of the will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for such issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.

2.ID.; ID.; RIGHT OR POWER OF TESTATOR. "After a will has been probated during the lifetime of a testator it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54). The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, New Civil Code).

D E C I S I O N

BAUTISTA ANGELO, J p:

Juan Palacios executed his last will and testament on June 25, 1946 and availing himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of First Instance of Batangas a petition for its approval. In said will, he instituted as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios.

On June 21, 1956, Maria Catimbang filed an opposition to the probate of the will alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in said will thus impairing her legitime.

After the presentation of petitioner's evidence relative to the essential requisites and formalities provided by law for the validity of a will, the court on July 6, 1956 issued an order admitting the will to probate. The court, however, set a date for the hearing of the opposition relative to the intrinsic validity of the will and, after proper hearing concerning this incident, the court issued another order declaring oppositor to be the natural child of petitioner and annulling the will insofar as it impairs her legitime, with costs against petitioner.

From this last order, petitioner gave notice of his intention to appeal directly to the Supreme Court, and accordingly, the record was elevated to this Court.

It should be noted that petitioner instituted the present proceeding in order to secure the probate of his will availing himself of the provisions of Article 838, paragraph 2, of the new Civil Code, which permit a testator to petition the proper court during his lifetime for the allowance of his will, but to such petition one Maria Catimbang filed an opposition alleging that she is the acknowledged natural daughter of petitioner but that she was completely ignored in the will thus impairing her legitime. In other words, Maria Catimbang does not object to the probate of the will insofar as its due execution is concerned or on the ground that it has not complied with the formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of the provisions of the will.

We hold that such opposition cannot be entertained in this proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law, much less if the purpose of the opposition is to show that the oppositor is an acknowledged natural child who allegedly has been ignored in the will for such issue cannot be raised here but in a separate action. This is especially so when the testator, as in the present case, is still alive and has merely filed a petition for the allowance of his will leaving the effects thereof after his death.

This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said: "The authentication of the will decides no other questions than such as touch upon the capacity of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of a will. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; that may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely un-affected, and may be raised even after the will has been authenticated."

On the other hand, "after a will has been probated during the lifetime of a testator it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceedings after the testator's death would be in order" (Report of the Code Commission, pp. 53-54). The reason for this comment is that the rights to the succession are transmitted from the moment of the death of the decedent (Article 777, new Civil Code).

It is clear that the trial court erred in entertaining the opposition and in annulling the portion of the will which allegedly impairs the legitime of the oppositor on the ground that, as it has found, she is an acknowledged natural daughter of the testator. This is an extraneous matter which should be threshed out in a separate action.

Wherefore, the order appealed from is set aside, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Endencia, Barrera and Gutierrez David, JJ., concur.

[G.R. No. 42619. March 11, 1937.]

NICOLASA MACAM, as testamentary executrix of the estate of the deceased Leonarda Macam, plaintiff-appellant, vs. JUANA GATMAITAN and MAGNO S. GATMAITAN, defendants-appellees.

Reyes & Reyes for appellant.

Juan Ortega and Magno S. Gatmaitan for appellees.

SYLLABUS

RECIPROCAL ASSIGNMENT OF PROPERTY; VALID AND BINDING ALEATORY CONTRACT. Under the facts stated in the decision of the court, Held: That exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. L and J, the parties to the aforesaid contract, thereby agreed that the one or the other, depending upon who died first, would acquire the ownership of the respective property of the deceased, having made a reciprocal assignment thereof, the time of death determining the event upon which the acquisition of the right of the survivor depended. This contract, as any other contract, is binding upon the parties thereto.

D E C I S I O N

AVANCEA, C. J p:

This is an action brought by the plaintiff, as executrix of the testate estate of the deceased Leonarda Macam, for the recovery from the defendants Juana Gatmaitan and Magno S. Gatmaitan of the ownership of the house described in paragraph 2 of the complaint. The plaintiff appealed from the decision of the court absolving the defendants.

On September 24, 1929, the deceased Leonarda Macam and the defendant Juana Gatmaitan purchased the house in question for P3,000 from the spouses Generoso Inducil and Flora Ramos (Exhibit B). It is stated in the deed of sale that the vendors received the purchase price of the house from the vendees, both single. However, on June 12, 1932, the deceased Leonarda Macam and the defendant Juana Gatmaitan subscribed a document (Exhibit C) which reads as follows:

"Know all men by these presents:

"That we, Leonarda Macam and Juana Gatmaitan, both single, of age and residents of the municipality of Calumpit, Province of Bulacan, Philippine Islands, by means of this document, freely and voluntarily state as follows:

"1.That during the time we lived together as friends, we have purchased a house of strong materials built on a lot belonging to the Diocese, situated in the municipality of Calumpit, Province of Bulacan, and declared for taxation purposes under Tax No. 6977, one Buick automobile, and furniture necessary for the house.

"2.That I, Juana Gatmaitan, hereby declare that the house purchased by as was paid with my friend Leonarda Macam's own money in the sum of three thousand pesos (P3,000) and therefore, said house truly belongs to my said friend. The following furniture likewise truly belong to her:

"One (1) wardrobe with mirror and carved top.

"One (1) narra bed.

"One (1) small wooden wardrobe.

"One (1) small wooden table.

"One (1) narra chair.

"One (1) rattan sofa.

"One (1) dining room table.

"One (1) kitchen table.

"Two (2) dining room benches.

"Two (2) kitchen benches.

"One (1) ice box.

"3.I, Leonarda Macam also hereby declare that the Buick automobile and most of the furniture in the house where we lived, as the narra chairs, wardrobe and bed, truly belong to my friend Juan Gatmaitan, said automobile and most of said furniture having been bought with money exclusively belonging to her; and she was also the one who had my house painted.

"4.That in consideration of the friendship we mutually profess, considering ourselves almost as sisters, we have voluntarily agreed that whoever of us will die first shall leave to the supervisor, as the latter's property, the house and all the furniture therein together with the Buick automobile above-stated, excluding the furniture belonging to Leonarda Macam stated in paragraph 2 of this document, which may be taken by the heirs of said Leonarda Macam if she will be the first to give her soul to God, as a remembrance to her surviving friend, and this agreement shall be equivalent to a transfer of the rights of the one who die first and shall be kept by the survivor; and none of our heirs shall claim the property mentioned in this document, left by any of us who dies first.

"In witness whereof, we affix our signature at the foot of this document as a proof of the acceptance by each of us of this agreement, this 12th day of July, 1932, in the municipality of Calumpit, Province of Bulacan, P. I."

It is inferred from the foregoing document that the deceased Leonarda Macam and the defendant Juana Gatmaitan lived together as friends, Leonarda having contributed the house and Juana the Buick automobile and most of the furniture to such companionship, both having thereby established between themselves a de facto joint ownership of the properties respectively contributed by them, which, judging from their nature and description, are more or less of the same value. Such must be the case, judging from the fact that, although the house was purchased with money exclusively belonging to Leonarda, it was made to appear that both were the purchasers.

The plaintiff contends that with respect to the house, Exhibit C, on the part of Leonarda, constitutes a donation mortis causa in favor of Juana, and that as it had not been executed with all the formalities required by the law for a will, it is entirely invalid and did not produce the effect of conveying the ownership of the house to Juana.

The lower court, in absolving the defendants from the complaint, considered the act of the deceased Leonarda as a transfer of the ownership of the house in favor of Juana, but not in the concept of donation. This conclusion of the court below is supported by the literal interpretation of Exhibit C, wherein the parties describe the act performed by them as an agreement and a transfer.

This court whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first.

In view of the foregoing considerations, the judgment appealed from is affirmed with costs to the appellant. So ordered.

[G.R. No. 47305. July 31, 1942.]

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-appellant, vs. PETRONA AREVALO, ET AL., oppositors-appellees.

Nicasio Yatco, for appellant.

Ventura & Belmonte, for appellees.

SYLLABUS

1.WILLS; ALLEGED FORGERY OF SIGNATURE OF TESTATRIX; CASE AT BAR. In passing upon questioned documents, the test is the general character of the writing rather than any minute and precise comparison of individual letters or lines (People vs. Bustos, 45 Phil., 30). In the present case, a careful scrutiny of all the questioned and the standard signatures leaves the conviction that they have been written by the same person because they show the same general type, quality and characteristics, with natural variations. Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned signatures the letters "R" and "u" are separated, but in others, they are united. Furthermore, the document in question was prepared and signed in duplicate, so that there are six signatures of the testatrix, instead of only three. It is reasonable to believe that a forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In this case, the attorney who supervised the execution of the will must have known that it was not necessary to make a signed duplicate thereof. To conclude that a forgery has been committed, the evidence should be forcefully persuasive. Other reasons are set out in the decision in support of the holding that the will in question is genuine and should be allowed.

2.ID.; REVOCATION; INTERPRETATION BY COURTS. Provisions of the second will are quoted in the decision to show that the latter will entirely revoke the earlier one. Though it might appear right that a relative, raised by the testatrix, should receive something from the estate, nevertheless it would be venturesome for the court to advance its own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she chose, subject of course to the payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only function of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because, as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and, secondly, because there are no adequate means of ascertaining the inward processes of her conscience. She was the sole judge of her own attitude toward those who expected her bounty.

D E C I S I O N

BOCOBO, J p:

The main issue in this case is whether or not Exhibit C, presented by appellant for allowance as the last will and testament of the deceased Rufina Arevalo, is a forgery. The Court of First Instance of Manila held that it was a forged document, and allowed an earlier will, Exhibit 6, whose authenticity was unquestioned. The value of the estate is over P50,000.

The questioned document was prepared and signed in duplicate. It consists of two pages and is dated October 2, 1937. It appears to be signed by Rufina Arevalo and by three witnesses, Manuel M. Cruz, Remigio Colina and Angel Sanchez. The formal requisites of a will have been complied with.

An initial fact that arrests the attention is the formulation by the appellees of the allegation of forgery even before seeing the questioned document. Said charge of forgery was signed on April 22, 1938, although Exhibit C, which had been in a sealed envelop, was not opened by order of the court till the next day, April 23, 1938. It is true that the opposition by the appellees was not actually filed in court till April 23, but it was signed by appellees' attorneys on April 22, was subscribed and sworn to by Amando Clemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees' attorneys, Messrs. Jose Belmonte and Vicente Delgado, announced their opposition to the will Exhibit C in open court, before said document was opened by order of the court on that day.

One of the principal reasons of the court a quo for believing Exhibit C to be a forgery is that in the genuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u," while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although in the central signature appearing on page 2, the two letters are separated. The probate court believes that this difference between the marginal and the central signatures is due to the fact that the forger first used the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but having been shown another signature with the characteristic already mentioned separation of the two letters he tried to imitate said peculiarity in making the central signature.

We believe the probate court has overlooked the well-established principle that in passing upon questioned documents, the test is the general character of the writing rather than any minute and precise comparison of individual letters or lines. In People vs. Bustos (45 Phil., 30), this Court held:

"It is a first principle in writing that exact coincidence between two signatures is absolute proof that one or the other is a forgery. There must be some difference before authenticity can be admitted; and the general rule is that authenticity reposes upon a general characteristic resemblance, coupled with specific differences, such as naturally result from the infinite variety of conditions controlling the muscles of the writer at each separate effort in forming his signature." (Emphasis supplied.)

In the present case, a careful scrutiny of all the questioned and the standard signatures has convinced us that they have been written by the same person because they show the same general type, quality and characteristics, with natural variations. We are, therefore, inclined to give credence to the expert testimony to that effect presented by the appellant.

Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned signatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "Questioned Documents" (pp. 368, 369) says:

"Another indication of genuineness in a holographic document or a considerable amount of writing, or in two or more disputed signatures, are certain natural variations in the details of the writing. It is difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in a group of several signatures and variation in repeated words and letters in a continuous holographic document can be evidence of genuineness. The forger does not understand this necessity for natural variation and, as nearly as he can, makes words and letters just alike.

xxx xxx xxx

"It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery." (Emphasis supplied.)

Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that a forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In this case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it was not necessary to make a signed duplicate of the will.

As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a model in falsifying the marginal signatures, it is highly improbable that said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or about October 2, 1937, when the document in question was signed. The check had been issued on June 30, 1936, or over a year before, and it must have been returned by the bank concerned to "La Previsora" in the ordinary course of business, because it was produced by the Manager of "La Previsora." It should likewise be observed that the signature on the first page of the duplicate will (Exhibit C-3) does not have the supposed peculiarity of the standard signatures, that is, the separation between "R" and "u." If, as the lower court states, the forger upon being shown a model other than Exhibit I, imitated said characteristic separation in making the central or body signature on the original will Exhibit C, it is indeed strange that he should not do the same immediately thereafter on the first page of the duplicate will but that he should, instead, repeat the mistake he had made on the marginal signatures on the original will.

Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive. Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet the forgery of a will, which would not only send him to jail for many years but would ruin his future, we must require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt. And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It is hard to believe they would commit perjury as it has not been shown they had any interest in this case.

Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, is genuine and should be allowed.

It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined in detail by the probate court, inasmuch as the foregoing disposes of the basic question raised. The relative position of the contending devisees in the affection of the deceased; whether Rufina Arevalo could go alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged resentment of the testatrix toward Amando Clemente when she signed the second will, and similar questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, they merely tend to becloud the main issue.

The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937, whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9, 1936. Though both parties admit that the first will has been revoked by the second, yet we deem it necessary to discuss the question because a member of this Court thinks the earlier will can stand in part. It appears that the undivided interest of Rufina Arevalo in two parcels of land and the improvements thereon which belonged to the conjugal partnership between Bernabe Bustamante, who had died before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando Clemente in the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and the buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, Petrona Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor of Amando Clemente, another cousin, of a piece of land and the houses thereon, and of her undivided interest in the two parcels of land and the improvements thereon, which belonged to the conjugal partnership, also making said Amando Clemente the residuary legatee. But in the second will, Exhibit C, she designates Ariston Bustamante her only heir in these terms:

"Segundo Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble que se describen ms abajo:

(a)Original Certificate of Title of Manila No. 5059

(b)Original Certificate of Title of Manila No. 4681

(c)Transfer Certificate of Title of Manila No. 19961

(d)Original Certificate of Title of Manila No. 5066

(e)Original Certificate of Title of Manila No. 4682."

Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the later will, Exhibit C. Moreover, the second will has no revocation clause.

At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in said two parcels of land belonging to the conjugal partnership. But a closer examination of the later will counteracts such initial reaction.

In the first place, the testatrix in the second will names Ariston Bustamante her only heir to all her property, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble." (Emphasis supplied.) It is true that in enumerating her parcels of land, she did not specify her interest in the two lots of the conjugal partnership. But this omission must have been due either to an oversight or to the belief that it was premature to name said two parcels as the conjugal partnership was still being liquidated. In either case, the testatrix must have thought that her comprehensive words "mi unico heredero de todas mis propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whether specially listed or not.

Secondly, in the opening paragraph of the second will, the following words appear: "hago constar a todos este mi ultimo testamento y voluntad expresado en Castellano lenguaje que conozco y poseo, y queriendo disponer de mis bienes por virtud de este mi testamento." (Emphasis supplied.) Though she knew that she had made a first will, she nevertheless said that the second will was her last one. This would seem to signify that her last will, cancelling her previously expressed wish, was to make Ariston Bustamante her only heir. Furthermore, when she said she wanted to dispose of her property by means of the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would appear to be her intention that no property of hers should be left undisposed of in the second will. This fact is corroborated in the second clause wherein she names Ariston Bustamante as her only heir to all her property whether personal or real.

We believe, therefore, that the first will has been entirely revoked. Though it might appear right that Amando Clemente should receive something from the estate because he, together with Ariston Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she chose, subject of course to the payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only function of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. It might be said that it is hard to understand how, in a temporary anger at Amando Clemente, the testatrix would entirely cut him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments, first because, as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward processes of her conscience. She was the sole judge of her own attitude toward those who expected her bounty.

In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall be entered allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No special pronouncement on costs is made. Let the record of this case be returned to the court of origin for further proceedings. So ordered.

[G.R. No. 11823. February 11, 1918.]

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants, vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.

Guillermo Lualhati for appellants.

Perfecto Gabriel for appellees.

SYLLABUS

1.WILLS; REVOCATION BY SUBSEQUENT WILL. In order that a former will may be revoked by operation of law by a subsequent will, it is necessary that the latter should be-valid and executed with the formalities required for the making of wills.

2.ID.; ID. A subsequent will containing a clause revoking a previous will, should possess all the requisites of a will, should be signed and attested in the manner provided by law, and should be allowed, in order that the revocatory clause thereof may produce the effect of revoking the previous will.

3.ID.; ID.; VOID REVOCATORY CLAUSE. A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.

D E C I S I O N

ARAULLO, J p:

On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First Instance of the city of Manila, for allowance as the will of Simeona F. Naval, who died in said city two days previously, a document executed by her on February 13, 1915, and in which he was appointed executor. The case was recorded as No. 13386 and, after hearing the petition for allowance filed by said executor. it was denied on the ground that said document was not duly executed by the deceased as her last will and testament, inasmuch as she did not sign it in the presence of three witnesses and the two witnesses did not sign it in the presence of each other. Thereafter the nieces and legatees of the same deceased filed in the same court for allowance as her will, another document executed by her on October 31, 1914, and, consequently, the case was registered under another number, which was No. 13579. The petition for allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will, the allowance of which is asked, could not be allowed, because of the existence of another will of subsequent date, executed during her lifetime by the same Simeona F. Naval, and because said will has been revoked by another executed subsequently by her during her lifetime, and, further, because said will has not been executed with the formalities required by existing laws. Trial having taken place, at which evidence was adduced, the court on February 8, 1916, issued an order, admitting said second document and ordering its allowance as the last will and testament of said deceased. From said order the opponents appealed to this court and transmitted to us the corresponding declarations. Two of the opponents, that is, Rosa and Cristina Naval, assigned, as errors committed by the court, the following:

1.The finding of the court that the will of October 31. 1914, has not been revoked by that of February 13, 1915;

2.The act of the court in permitting the petitioner to institute and proceed with the proceedings relative to the last case for the allowance of the will, No. 13579, notwithstanding that proceedings had already been had in the other case No. 13386 and final judgment rendered therein; and

3.The act of the court in denying the motion for continuance of the trial on the allowance of the will of October 31, 1914, which motion was presented for the sole purpose of introducing evidence to show the falsity of the signatures appearing in said will and submitting said signatures to the Bureau of Science for analysis.

The other opponent, Monica Naval. assigned, besides the first two errors already mentioned, the finding of the court that the disallowance of the will of said deceased, dated February 13, 1915, on the ground that it was not executed in such form that it could transmit real and personal property, according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will.

From the evidence it appears, as we have already stated, that the trial court declared that the first document presented by the executor of the deceased, Simeona F. Naval, as a will executed by her on February 13, 1915, and which was the subject-matter of case No. 13386 of said court could not be allowed, on the ground that it was not executed with the requisites and formalities prescribed by law. Article 739 of the Civil Code provides that a former will is by operation of law revoked by another valid subsequent will, if the testator does not state in the later will his desire that the former should subsist wholly or partly. In harmony with this provision of substantive law, we find section 623 of the Code of Civil Procedure, which provides that no will shall be revoked, except by implication of law, otherwise than by some will, codicil, or other writing executed as provided in case of wills.

Therefore, according to these legal provisions, in order that the will of February 13, 1915, that is, the first document presented as the will of the deceased Simeona F. Naval, could have the effect of revoking that which was presented afterwards by the petitioners as executed by the same deceased on October 31, 1914, that is, on a date previous to the execution of the first, it was necessary and indispensable that the later will, that is, that first presented for allowance, should be perfect or valid, that is, executed as provided by law in case of wills.

It also appears from the record that the opponents themselves maintained that said later will, that is, that of February 13, 1915, was not perfect, or executed as provided by law in case of wills, and the Court of First Instance of Manila has so held in disallowing said document as the will of the deceased. So that it is very evident that the second will presented, that is, that of October 31, 1914, was not and could not have been revoked by the first, and the court was not in error in so holding in the order appealed from. We deem it unnecessary to add a single word more or cite well-known doctrines and opinions of jurists in support of what has already been stated.

As to the second error assigned by the opponents, we believe it sufficient to refer to what the court below stated in the judgment appealed from. It is as follows:

"The court finds no in congruency in the presentation of a prior will when another will of subsequent date has been disallowed. Disregarding the fact that the petitioners in this case were not those who presented the will in No. 13386, in which the petition was presented by the same D. Perfecto Gabriel as executor, it is proper to take into account that the object of a petition for allowance is to ask for an order declaring that a will has been executed in accordance with the requisites and formalities required by law. This is a question for the court to decide and is out of the control of the party who presents the will. The allowance or disallowance of a will by a competent court depends upon whether the evidence adduced at the trial shows or does not show that the formalities required by law have been complied with, and this cannot be determined in advance, as a general rule, by the person who presents the testament, for he has not always concurred in or seen the execution of the will.

"If, therefore, the person who presents a will and asks that it be allowed does not secure its allowance, and he has in his possession another will, or has information that another exists, he does not contradict himself by asking for the allowance of the will of earlier date merely because the later will was declared invalid by the proper court. If in this case there is any who adopts a contradictory position, it is the respondent himself, inasmuch as in case No. 13386 he alleged, as a ground for the disallowance of the will then presented, that it was not executed in accordance with the law, and now he maintains the contrary, for he claims that said will revoked that which is now presented."

With respect to the third error, it is beyond doubt that the court did not commit it, for it appears that when the examination of the witness, Cristina Samson, was finished and the court told Attorney Lualhati, counsel for the respondents, to continue adducing his evidence, he said he had no more proof, although he added that he would ask the court to grant him permission to send the will of 1914 to the Bureau of Science, which petition was objected to by the attorney for the proponents and denied by the court. Immediately thereafter the attorney for the opponents asked for the continuance of the trial, which was also denied by the court, after objection was made by the proponents. The attorney for the opponents excepted to said ruling.

Therefore, the petition of said attorney for the remission of said will to the Bureau of Science, in the terms in which it was made to the court, after he had stated that he had no more evidence to present, signified that he left it to the discretion of the court to grant it or not. Furthermore, no exception was taken to the order denying this motion, and although the attorney for the opponents excepted to the order denying the motion for continuance of the trial, such exception was completely useless and ineffective for the purpose of alleging before this court that the trial court erred in that respect, for said resolution, being one of those left to the discretion of the court in the exercise of its functions, according to section 141 of the Code of Civil Procedure, it could not be the subject of an exception, unless the court, in denying said motion, abused its discretional power and thereby prejudiced the essential rights of the respondents, which is not the case here.

The error which, in addition to the first two already mentioned, has been assigned by the opponent and appellant, Monica Naval, refers, according to her, to the court's action in declaring that the disallowance of the will of the deceased Simeona F. Naval, dated February 13, 1915, for the reason that it was not executed in such manner and form that it could transmit real and personal property, according to the provisions of section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause of said will.

First of all, it is not true that the court made such statement in the terms given in said assignment of error, that is, it is not true that the court declared that, because said will was not executed in the form required by law in order that it may transmit real and personal property, according to the provisions of section 618, the disallowance of said will also had the effect of annulling the revocatory clause therein contained. In the order appealed from there is no declaration or conclusion made in these terms. The court did not say that the annulment of the revocatory clause in said will was the effect or consequence of the fact that it was not allowed on the ground that it was not executed in the form required by law in order that it may transmit real and personal property. Referring to the construction, given by the respondent to sections 618 and 623 of the Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will, although the later will has not been allowed by the competent court, it being sufficient that the intention of the testator to revoke the previous will should be clearly expressed, and that, while the requisite of allowance is necessary in order that it may transmit property from one person to another, it is not necessary in order that it might produce other effects, for example, the effect of a revocatory clause, or a clause of acknowledgment of a child, what the court declared, we repeat, was that although the revocation of a will should have been effected, not by means of another will or codicil, but by means of a document, as authorized by said section 623, which document should have the requisites and conditions fixed in section 618, the presentation of the document to the court was necessary in order that the latter might allow it, by declaring that it was executed with the formalities required by law for the execution of a will, and finally concluding that, just as it must be proved that the requisites of section 618 have been complied with in order that a will may be of value through its allowance, so without such allowance the revocatory clause like the other provisions of the will, has no value or effect except to show extraneous matters, as, for example, the acknowledgment of natural children, of some debt or obligation. In such case, the document could produce effect, but not as a will, but simply as a written admission made by the person executing it. And it is beyond doubt that the revocatory clause contained in a document, like the present, which contains provisions proper of a will, as those relating to legacies and distribution of the properties of the testator after his death as well as the appointment of executors, is not matter extraneous to the will, but merely a part thereof, intimately connected with it as well as with the will or wills, the revocation of which is declared in said clause; in short, the desire of the testator declared in the revocatory clause is related to the desire of the same testator expressed in the provisions of the testament in which said clause is found and to that which he might have expressed in the testaments which he may have previously executed. There is such relation between the revocatory clause and the will which contains it, that if the will does not produce legal effects, because it has not been executed in accordance with the provisions of the law, neither would the revocatory clause therein produce legal effects. And if, in the present case, the so-called will of the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her, as her last will and testament, as declared by the court in its decision of November 19, 1915, in case No. 133~6, for which reason its allowance was denied, neither may it be maintained that the revocatory clause contained in said will is the expression of the last will of said deceased. The disallowance of the will, therefore, produced the effect of annulling the revocatory clause, not exactly because said will was not executed in such form that it could transmit real and personal property, as inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon which said assignment of error is based, but because it was proved that said will was not executed or signed with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will, according to section 634 of said law; and of course what is invalid in law can produce no effect whatever.

"If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the statute. An instrument intended to be a will, but failing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will." (40 Cyc., p. 1177, and cases cited therein.)

"A subsequent will containing a clause revoking an earlier will must, as a general rule, be admitted to probate before the clause of revocation can have any effect, and the same kind, quality, and method of proof is required for the establishment of the subsequent will as was required for the establishment of the former will." (40 Cyc., p. 1178, and cases cited therein.)

But admitting that the will said to have been executed by the deceased Simeona F. Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for the reason that it has not been executed, according to the provisions of said section 618 of the Code of Civil Procedure, should be considered as executed by her in order to express her desire, appearing in one of its clauses, to revoke and annul any previous will of hers, as stated in clause 13, this being the argument adduced by the appellant, Monica Naval, in support of said assignment of error neither could it be maintained that, the allowance of said will having been denied by the court on November 11, 1915, said revocatory clause subsists and the intention expressed by the testatrix therein is valid and legally effective, for the simple reason that, in order that a will may be revoked by a document it is necessary, according to the conclusive provisions of section 623 of said procedural law, that such document be executed according to the provisions relating to will in section 618, and the will in question, or, according to the respondent, the so-called document, was not executed according to the provisions of said section, according to the express finding of the trial court in its order of November 11, 1915, acquiesced in by the opponent herself, and which is now final and executory. Therefore, the disallowance of said will and the declaration that it was not executed according to the provisions of law as to wills, produced the effect of annulling said revocatory clause.

In support of the argument advanced in her brief said appellant, Monica Naval, cites the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114 Mass., 510, 512), which, according to the appellant herself, was in the following terms:

"If it be shown that a later will was duly executed and attested, containing a clause expressly revoking former wills, nothing else appearing as to its contents, it is nevertheless good as a revocation, but it can only be made available by setting it up in opposition to the probate of the earlier will."

In the decision of said case the finding referred to be by the appellant appears not to have been made by the Supreme Court of Massachusetts.

The syllabus of said decision says:

"When a will revoking a former will is in existence, it must be established in the Probate Court; but when it has been lost or destroyed, and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will revoked by it."

And in the body of the decision there is a declaration, to which the appellant must have desired to refer in her brief, which declaration says:

"If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will," . . ..

The facts of the case in which this decision was rendered are different from the facts of the case at bar. That was a case concerning a will filed by one of the children of the testatrix, Mary Wallis, as her last will, to the allowance of which another son objected, alleging that said will had been revoked by another executed by the same deceased subsequent to the will that was filed, and that it had been fraudu