SUCCESSION – ATTY. FRETTI GANCHOON

I. Definition of Succession, Kinds and Basic Concepts Arts. 774-782)

G.R. No. L-68053 May 7, 1990 LAURA ALVAREZ, FLORA ALVAREZ and RAYMUNDO ALVAREZ, petitioners, vs. THE HONORABLE INTERMEDIATE APELLATE COURT and JESUS YANES, ESTELITA YANES, ANTONIO YANES, ROSARIO YANES, and ILUMINADO YANES, respondents.Francisco G. Banzon for petitioner.Renecio R. Espiritu for private respondents.

 FERNAN, C.J.:This is a petition for review on certiorari seeking the reversal of: (a) the decision of the Fourth Civil Cases Division of the Intermediate Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the decision dated July 8, 1974 of the Court of First Instance of Negros Occidental insofar as it ordered the petitioners to pay jointly and severally the private respondents the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental and reversing the subject decision insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively and (b) the resolution of said appellate court dated May 30, 1984, denying the motion for reconsideration of its decision.The real properties involved are two parcels of land identified as Lot 773-A and Lot 773-B which were originally known as Lot 773 of the cadastral survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549 square meters, was registered in the name of the heirs of Aniceto Yanes under Original Certificate of Title No. RO-4858 (8804) issued on October 9, 1917 by the Register of Deeds of Occidental Negros (Exh. A).Aniceto Yanes was survived by his children, Rufino, Felipe and Teodora. Herein private respondents, Estelita, Iluminado and Jesus, are the children of Rufino who died in 1962 while the other private respondents, Antonio and Rosario Yanes, are children of Felipe. Teodora was survived by her child, Jovita (Jovito) Alib. 1 It is not clear why the latter is not included as a party in this case.

Aniceto left his children Lots 773 and 823. Teodora cultivated only three hectares of Lot 823 as she could not attend to the other portions of the two lots which had a total area of around twenty-four hectares. The record does not show whether the children of Felipe also cultivated some portions of the lots but it is established that Rufino and his children left the province to settle in other places as a result of the outbreak of World War II. According to Estelita, from the "Japanese time up to peace time", they did not visit the parcels of land in question but "after liberation", when her brother went there to get their share of the sugar produced therein, he was informed that Fortunato Santiago, Fuentebella (Puentevella) and Alvarez were in possession of Lot 773. 2

It is on record that on May 19, 1938, Fortunato D. Santiago was issued Transfer Certificate of Title No. RF 2694 (29797) covering Lot 773-A with an area of 37,818 square meters. 3 TCT No. RF 2694 describes Lot 773-A as a portion of Lot 773 of the cadastral survey of Murcia and as originally registered under OCT No. 8804.The bigger portion of Lot 773 with an area of 118,831 square meters was also registered in the name of Fortunato D. Santiago on September 6, 1938 Under TCT No. RT-2695 (28192 ). 4 Said transfer certificate of title also contains a certification to the effect that Lot 773-B was originally registered under OCT No. 8804.On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B. Fuentebella, Jr. in consideration of the sum of P7,000.00. 5 Consequently, on February 20, 1956, TCT Nos. T-19291 and T-19292 were issued in Fuentebella's name. 6

After Fuentebella's death and during the settlement of his estate, the administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife) filed in Special Proceedings No. 4373 in the Court of First Instance of Negros Occidental, a motion requesting authority to sell Lots 773-A and 773-B. 7 By virtue of a court order granting said motion, 8 on March 24, 1958, Arsenia Vda. de Fuentebella sold said lots for P6,000.00 to Rosendo Alvarez. 9 Hence, on April 1, 1958 TCT Nos. T-23165 and T-23166 covering Lots 773-A and 773-B were respectively issued to Rosendo Alvarez. 10

Two years later or on May 26, 1960, Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado and Jesus, filed in the Court of First Instance of Negros Occidental a complaint against Fortunato Santiago, Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds of Negros Occidental for the "return" of the ownership and possession of Lots 773 and 823. They also prayed that an accounting of the produce of the land from 1944 up to the filing of the complaint be made by the defendants, that after court approval of said accounting, the share or money equivalent due the plaintiffs be delivered to them, and that defendants be ordered to pay plaintiffs P500.00 as damages in the form of attorney's fees. 11

During the pendency in court of said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B and another lot for P25,000.00 to Dr. Rodolfo Siason. 12 Accordingly, TCT Nos. 30919 and 30920 were issued to Siason, 13 who thereafter, declared the two lots in his name for assessment purposes. 14

Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in behalf of the other plaintiffs, and assisted by their counsel, filed a manifestation in Civil Case No. 5022 stating that the therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary or otherwise, against the defendant Arsenia Vda. de Fuentebella in connection with the above-entitled case." 15

On October 11, 1963, a decision was rendered by the Court of First Instance of Negros Occidental in Civil Case No. 5022, the dispositive portion of which reads:WHEREFORE, judgment is rendered, ordering the defendant Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and 823 of the Cadastral Survey of Murcia, Negros Occidental, now covered by Transfer Certificates of Title Nos. T-23165 and T-23166 in the name of said defendant, and thereafter to deliver the possession of said lots to the plaintiffs. No special pronouncement as to costs.SO ORDERED. 16

It will be noted that the above-mentioned manifestation of Jesus Yanes was not mentioned in the aforesaid decision.

However, execution of said decision proved unsuccessful with respect to Lot 773. In his return of service dated October 20, 1965, the sheriff stated that he discovered that Lot 773 had been subdivided into Lots 773-A and 773-B; that they were "in the name" of Rodolfo Siason who had purchased them from Alvarez, and that Lot 773 could not be delivered to the plaintiffs as Siason was "not a party per writ of execution." 17

The execution of the decision in Civil Case No. 5022 having met a hindrance, herein private respondents (the Yaneses) filed on July 31, 1965, in the Court of First Instance of Negros Occidental a petition for the issuance of a new certificate of title and for a declaration of nullity of TCT Nos. T-23165 and T-23166 issued to Rosendo Alvarez. 18 Thereafter, the court required Rodolfo Siason to produce the certificates of title covering Lots 773 and 823.Expectedly, Siason filed a manifestation stating that he purchased Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith and for a valuable consideration without any knowledge of any lien or encumbrances against said properties"; that the decision in the cadastral proceeding 19 could not be enforced against him as he was not a party thereto; and that the decision in Civil Case No. 5022 could neither be enforced against him not only because he was not a party-litigant therein but also because it had long become final and executory. 20 Finding said manifestation to be well-founded, the cadastral court, in its order of September 4, 1965, nullified its previous order requiring Siason to surrender the certificates of title mentioned therein. 21

In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias writ of execution in Civil Case No. 5022. Siason opposed it. 22 In its order of September 28, 1968 in Civil Case No. 5022, the lower court, noting that the Yaneses had instituted another action for the recovery of the land in question, ruled that at the judgment therein could not be enforced against Siason as he was not a party in the case. 23

The action filed by the Yaneses on February 21, 1968 was for recovery of real property with damages. 24 Named defendants therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register of Deeds of Negros Occidental. The Yaneses prayed for the cancellation of TCT Nos. T-19291 and 19292 issued to Siason (sic) for being null and void; the issuance of a new certificate of title in the name of the Yaneses "in accordance with the sheriffs return of service dated October 20, 1965;" Siason's delivery of possession of Lot 773 to the Yaneses; and if, delivery thereof could not be effected, or, if the issuance of a new title could not be made, that the Alvarez and Siason jointly and severally pay the Yaneses the sum of P45,000.00. They also prayed that Siason render an accounting of the fruits of Lot 773 from November 13, 1961 until the filing of the complaint; and that the defendants jointly and severally pay the Yaneses moral damages of P20,000.00 and exemplary damages of P10,000.00 plus attorney's fees of P4, 000.00. 25

In his answer to the complaint, Siason alleged that the validity of his titles to Lots 773-A and 773-B, having been passed upon by the court in its order of September 4, 1965, had become res judicata and the Yaneses were estopped from questioning said order. 26 On their part, the Alvarez stated in their answer that the Yaneses' cause of action had been "barred by res judicata, statute of limitation and estoppel." 27

In its decision of July 8, 1974, the lower court found that Rodolfo Siason, who purchased the properties in question thru an agent as he was then in Mexico pursuing further medical studies, was a buyer in good faith for a valuable consideration. Although the Yaneses were negligent in their failure to place a notice of lis pendens"before the Register of Deeds of Negros Occidental in order to protect their rights over the property in question" in Civil Case No. 5022, equity demanded that they recover the actual value of the land because the sale thereof executed between Alvarez and Siason was without court approval. 28 The dispositive portion of the decision states:IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby rendered in the following manner:A. The case against the defendant Dr. Rodolfo Siason and the Register of Deeds are (sic) hereby dismmissed,

B. The defendants, Laura, Flora and Raymundo, all surnamed Alvarez being the legitimate children of the deceased Rosendo Alvarez are hereby ordered to pay jointly and severally the plaintiffs the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros Occidental; the sum of P2,000.00 as actual damages suffered by the plaintiff; the sum of P5,000.00 representing moral damages and the sum of P2.000 as attorney's fees, all with legal rate of interest from date of the filing of this complaint up to final payment.C. The cross-claim filed by the defendant Dr. Rodolfo Siason against the defendants, Laura, Flora and Raymundo, all surnamed Alvarez is hereby dismissed.D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez are hereby ordered to pay the costs of this suit.SO ORDERED. 29

The Alvarez appealed to the then Intermediate Appellate Court which in its decision of August 31, 1983 30 affirmed the lower court's decision "insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs-appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively." 31 The dispositive portion of said decision reads:WHEREFORE, the decision appealed from is affirmed insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs- appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively. No costs.SO ORDERED. 32

Finding no cogent reason to grant appellants motion for reconsideration, said appellate court denied the same.Hence, the instant petition. ln their memorandum petitioners raised the following issues:1. Whethere or not the defense of prescription and estoppel had been timely and properly invoked and raised by the petitioners in the lower court.

2. Whether or not the cause and/or causes of action of the private respondents, if ever there are any, as alleged in their complaint dated February 21, 1968 which has been docketed in the trial court as Civil Case No. 8474 supra, are forever barred by statute of limitation and/or prescription of action and estoppel.3. Whether or not the late Rosendo Alvarez, a defendant in Civil Case No. 5022, supra and father of the petitioners become a privy and/or party to the waiver (Exhibit 4-defendant Siason) in Civil Case No. 8474, supra where the private respondents had unqualifiedly and absolutely waived, renounced and quitclaimed all their alleged rights and interests, if ever there is any, on Lots Nos. 773-A and 773-B of Murcia Cadastre as appearing in their written manifestation dated November 6, 1962 (Exhibits "4" Siason) which had not been controverted or even impliedly or indirectly denied by them.4. Whether or not the liability or liabilities of Rosendo Alvarez arising from the sale of Lots Nos. 773-A and 773-B of Murcia Cadastre to Dr. Rodolfo Siason, if ever there is any, could be legally passed or transmitted by operations (sic) of law to the petitioners without violation of law and due process . 33

The petition is devoid of merit.As correctly ruled by the Court of Appeals, it is powerless and for that matter so is the Supreme Court, to review the decision in Civil Case No. 5022 ordering Alvarez to reconvey the lots in dispute to herein private respondents. Said decision had long become final and executory and with the possible exception of Dr. Siason, who was not a party to said case, the decision in Civil Case No. 5022 is the law of the case between the parties thereto. It ended when Alvarez or his heirs failed to appeal the decision against them. 34

Thus, it is axiomatic that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it remains unreversed, it should be conclusive upon the parties and those in privity with them in law or estate. 35 As consistently ruled by this Court, every litigation must come to an end. Access to the court is guaranteed. But there must be a limit to it. Once a litigant's right has been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to return for another try. The prevailing party should not be harassed by subsequent suits. For, if endless litigation were to be allowed, unscrupulous litigations will multiply in number to the detriment of the administration of justice. 36

There is no dispute that the rights of the Yaneses to the properties in question have been finally adjudicated in Civil Case No. 5022. As found by the lower court, from the uncontroverted evidence presented, the Yaneses have been illegally deprived of ownership and possession of the lots in question. 37 In fact, Civil Case No. 8474 now under review, arose from the failure to execute Civil Case No. 5022, as subject lots can no longer be reconveyed to private respondents Yaneses, the same having been sold during the pendency of the case by the petitioners' father to Dr. Siason who did not know about the controversy, there being no lis pendens annotated on the titles. Hence, it was also settled beyond question that Dr. Siason is a purchaser in good faith.Under the circumstances, the trial court did not annul the sale executed by Alvarez in favor of Dr. Siason on November 11, 1961 but in fact sustained it. The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case No. 5022 to pay the plaintiffs (private respondents herein) the amount of P20,000.00 representing the actual value of the subdivided lots in dispute. It did not order defendant Siason to pay said amount. 38

As to the propriety of the present case, it has long been established that the sole remedy of the landowner whose property has been wrongfully or erroneously registered in another's name is to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages. 39 "It is one thing to protect an innocent third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious decided As clearly revealed by the undeviating line of decisions coming from this Court, such an undesirable eventuality is precisely sought to be guarded against." 40

The issue on the right to the properties in litigation having been finally adjudicated in Civil Case No. 5022 in favor of private respondents, it cannot now be reopened in the instant case on the pretext that the defenses of prescription and estoppel have not been properly considered by the lower court. Petitioners could have appealed in the former case but they did not. They have therefore foreclosed their rights, if any, and they cannot now be heard to complain in another case in order to defeat the enforcement of a judgment which has longing become final and executory.

Petitioners further contend that the liability arising from the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death.Such contention is untenable for it overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of the deceased to his legitimate children and heirs. Thus, the pertinent provisions of the Civil Code state:Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property received from the decedent.As explained by this Court through Associate Justice J.B.L. Reyes in the case of Estate of Hemady vs. Luzon Surety Co., Inc. 41

The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the state is ultimately a payment by the heirs or distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.Under our law, therefore. the general rule is that a party's contractual rights and obligations are transmissible to the successors.

The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other.xxx xxx xxxPetitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the hereditary assets are always liable in their totality for the payment of the debts of the estate. 42

It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. With this clarification and considering petitioners' admission that there are other properties left by the deceased which are sufficient to cover the amount adjudged in favor of private respondents, we see no cogent reason to disturb the findings and conclusions of the Court of Appeals.WHEREFORE, subject to the clarification herein above stated, the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners.SO ORDERED.

[G.R. No. L-8437.  November 28, 1956.] ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.

 D E C I S I O NREYES, J. B. L., J.:Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-293) for failure to state a cause of action.The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.’s of having guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity agreements, all contained the following stipulations:“Premiums. — As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as premium there of for every __________ months or fractions thereof, this ________ or any renewal or substitution thereof is in effect.

Indemnity. — The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; and to pay, reimburse and make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less than P25. It is hereby further agreed that in case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this ________ which may be granted under this indemnity agreement.Interest on amount paid by the Company. — Any and all sums of money so paid by the company shall bear interest at the rate of 12%  per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not.x x x                    x x x                    x x xWaiver. — It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived.x x x                    x x x                    x x x

Our Liability Hereunder. — It shall not be necessary for the COMPANY to bring suit against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal, and shall be exigible immediately upon the occurrence of such default.” (Rec. App. pp. 98- 102.)The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds;  and (2) that “whatever losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.”Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:“The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemady’s death, are not chargeable to his estate because upon his death he ceased to be a guarantor.

Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement.” (Rec. App., pp. 407-408).We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that —“Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.”While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted.“ART. 774. — Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.”“ART. 776. — The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.”In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:“Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44).x x x                    x x x                    x x x

“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be “third persons” in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; chan roblesvirtualawlibrarythey take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights.”(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265).The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.Under our law, therefore, the general rule is that a party’s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive “depersonalization” of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt.

Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give;  and to the Luzon Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by some one else in his behalf, so long as the money was paid to it.The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable.“(b)  Intransmisibilidad por pacto. — Lo general es la transmisibilidad de darechos y obligaciones; chan roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a sus herederos.Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable convension terminante en tal sentido.Por su esencia, el derecho y la obligacion tienden a ir más allá de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; chan roblesvirtualawlibrarycuando no se quiera esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion del concreto a las mismas personas que lo otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-542) (Emphasis supplied.)

Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect;  hence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates nothing more than the company’s faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal.The third exception to the transmissibility of obligations under Article 1311 exists when they are “not transmissible by operation of law”. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety.The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees”. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; chan roblesvirtualawlibraryand if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity.The foregoing concept is confirmed by the next Article 2057, that runs as follows:“ART. 2057. — If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor.”

From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor:chanroblesvirtuallawlibrary it is his right, not his duty; chan roblesvirtualawlibraryhe may waive it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial court’s stand that the requirement of integrity in the guarantor or surety makes the latter’s undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death.The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43 Phil. 810, 814).“The most common example of the contigent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody — no claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; chan roblesvirtualawlibraryGibson vs. Mithell, 16 Pla., 519; chan roblesvirtualawlibraryMaxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; chan roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.)”

For Defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor;  and it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code.Our conclusion is that the solidary guarantor’s liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did state a cause of action, and its dismissal was erroneous.Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Costs against the Administratrix- Appellee. SO ORDERED.

G.R. No. 149926             February 23, 2005 UNION BANK OF THE PHILIPPINES, petitioner, vs.EDMUND SANTIBAÑEZ and FLORENCE SANTIBAÑEZ ARIOLA, respondents.

D E C I S I O NCALLEJO, SR., J.:Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court which seeks the reversal of the Decision1 of the Court of Appeals dated May 30, 2001 in CA-G.R. CV No. 48831 affirming the dismissal2 of the petitioner’s complaint in Civil Case No. 18909 by the Regional Trial Court (RTC) of Makati City, Branch 63.The antecedent facts are as follows:On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M. Santibañez entered into a loan agreement3 in the amount of P128,000.00. The amount was intended for the payment of the purchase price of one (1) unit Ford 6600 Agricultural All-Purpose Diesel Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory note in favor of the FCCC, the principal sum payable in five equal annual amortizations ofP43,745.96 due on May 31, 1981 and every May 31st thereafter up to May 31, 1985.On December 13, 1980, the FCCC and Efraim entered into another loan agreement,4 this time in the amount ofP123,156.00. It was intended to pay the balance of the purchase price of another unit of Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories, and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his son, Edmund, executed a promissory note for the said amount in favor of the FCCC. Aside from such promissory note, they also signed a Continuing Guaranty Agreement5 for the loan dated December 13, 1980.Sometime in February 1981, Efraim died, leaving a holographic will.6 Subsequently in March 1981, testate proceedings commenced before the RTC of Iloilo City, Branch 7, docketed as Special Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs, was appointed as the special administrator of the estate of the decedent.7 During the pendency of the testate proceedings, the surviving heirs, Edmund and his sister Florence Santibañez Ariola, executed a Joint Agreement8 dated July 22, 1981, wherein they agreed to divide between themselves and take possession of the three (3) tractors; that is, two (2) tractors for Edmund and one (1) tractor for Florence. Each of them was to assume the indebtedness of their late father to FCCC, corresponding to the tractor respectively taken by them.

On August 20, 1981, a Deed of Assignment with Assumption of Liabilities9 was executed by and between FCCC and Union Savings and Mortgage Bank, wherein the FCCC as the assignor, among others, assigned all its assets and liabilities to Union Savings and Mortgage Bank.Demand letters10 for the settlement of his account were sent by petitioner Union Bank of the Philippines (UBP) to Edmund, but the latter failed to heed the same and refused to pay. Thus, on February 5, 1988, the petitioner filed a Complaint11 for sum of money against the heirs of Efraim Santibañez, Edmund and Florence, before the RTC of Makati City, Branch 150, docketed as Civil Case No. 18909. Summonses were issued against both, but the one intended for Edmund was not served since he was in the United States and there was no information on his address or the date of his return to the Philippines.12 Accordingly, the complaint was narrowed down to respondent Florence S. Ariola.On December 7, 1988, respondent Florence S. Ariola filed her Answer13 and alleged that the loan documents did not bind her since she was not a party thereto. Considering that the joint agreement signed by her and her brother Edmund was not approved by the probate court, it was null and void; hence, she was not liable to the petitioner under the joint agreement.On January 29, 1990, the case was unloaded and re-raffled to the RTC of Makati City, Branch 63.14Consequently, trial on the merits ensued and a decision was subsequently rendered by the court dismissing the complaint for lack of merit. The decretal portion of the RTC decision reads:WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit.15

The trial court found that the claim of the petitioner should have been filed with the probate court before which the testate estate of the late Efraim Santibañez was pending, as the sum of money being claimed was an obligation incurred by the said decedent. The trial court also found that the Joint Agreement apparently executed by his heirs, Edmund and Florence, on July 22, 1981, was, in effect, a partition of the estate of the decedent. However, the said agreement was void, considering that it had not been approved by the probate court, and that there can be no valid partition until after the will has been probated. The trial court further declared that petitioner failed to prove that it was the now defunct Union Savings and Mortgage Bank to which the FCCC had assigned its assets and liabilities. The court also agreed to the contention of respondent Florence S. Ariola that the list of assets and liabilities of the FCCC assigned to Union Savings and Mortgage Bank did not clearly refer to the decedent’s account. Ruling that the joint agreement executed by the heirs was null and void, the trial court held that the petitioner’s cause of action against respondent Florence S. Ariola must necessarily fail.The petitioner appealed from the RTC decision and elevated its case to the Court of Appeals (CA), assigning the following as errors of the trial court:1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE PROBATE COURT.2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS UNTIL AFTER THE WILL HAS BEEN PROBATED.3. THE COURT A QUO ERRED IN NOT FINDING THAT THE DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE PROCEEDING.16

The petitioner asserted before the CA that the obligation of the deceased had passed to his legitimate children and heirs, in this case, Edmund and Florence; the unconditional signing of the joint agreement marked as Exhibit "A" estopped respondent Florence S. Ariola, and that she cannot deny her liability under the said document; as the agreement had been signed by both heirs in their personal capacity, it was no longer necessary to present the same before the probate court for approval; the property partitioned in the agreement was not one of those enumerated in the holographic will made by the deceased; and the active participation of the heirs, particularly respondent Florence S. Ariola, in the present ordinary civil action was tantamount to a waiver to re-litigate the claim in the estate proceedings.On the other hand, respondent Florence S. Ariola maintained that the money claim of the petitioner should have been presented before the probate court.17

The appellate court found that the appeal was not meritorious and held that the petitioner should have filed its claim with the probate court as provided under Sections 1 and 5, Rule 86 of the Rules of Court. It further held that the partition made in the agreement was null and void, since no valid partition may be had until after the will has been probated. According to the CA, page 2, paragraph (e) of the holographic will covered the subject properties (tractors) in generic terms when the deceased referred to them as "all other properties." Moreover, the active participation of respondent Florence S. Ariola in the case did not amount to a waiver. Thus, the CA affirmed the RTC decision, viz.:WHEREFORE, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 63, is hereby AFFIRMED in toto.SO ORDERED.18

In the present recourse, the petitioner ascribes the following errors to the CA:I.THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE JOINT AGREEMENT SHOULD BE APPROVED BY THE PROBATE COURT.II.THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE NO VALID PARTITION AMONG THE HEIRS OF THE LATE EFRAIM SANTIBAÑEZ UNTIL AFTER THE WILL HAS BEEN PROBATED.III.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-LITIGATED IN THE ESTATE PROCEEDING.IV.RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM SANTIBAÑEZ ON THE STRENGTH OF THE CONTINUING GUARANTY AGREEMENT EXECUTED IN FAVOR OF PETITIONER-APPELLANT UNION BANK.V.THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF P128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT OF P123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT THE RESPONDENTS BOUND THEMSELVES JOINTLY AND SEVERALLY LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAÑEZ IN FAVOR OF PETITIONER UNION BANK.19

The petitioner claims that the obligations of the deceased were transmitted to the heirs as provided in Article 774 of the Civil Code; there was thus no need for the probate court to approve the joint agreement where the heirs partitioned the tractors owned by the deceased and assumed the obligations related thereto. Since respondent Florence S. Ariola signed the joint agreement without any condition, she is now estopped from asserting any position contrary thereto. The petitioner also points out that the holographic will of the deceased did not include nor mention any of the tractors subject of the complaint, and, as such was beyond the ambit of the said will. The active participation and resistance of respondent Florence S. Ariola in the ordinary civil action against the petitioner’s claim amounts to a waiver of the right to have the claim presented in the probate proceedings, and to allow any one of the heirs who executed the joint agreement to escape liability to pay the value of the tractors under consideration would be equivalent to allowing the said heirs to enrich themselves to the damage and prejudice of the petitioner.

The petitioner, likewise, avers that the decisions of both the trial and appellate courts failed to consider the fact that respondent Florence S. Ariola and her brother Edmund executed loan documents, all establishing thevinculum juris or the legal bond between the late Efraim Santibañez and his heirs to be in the nature of a solidary obligation. Furthermore, the Promissory Notes dated May 31, 1980 and December 13, 1980 executed by the late Efraim Santibañez, together with his heirs, Edmund and respondent Florence, made the obligation solidary as far as the said heirs are concerned. The petitioner also proffers that, considering the express provisions of the continuing guaranty agreement and the promissory notes executed by the named respondents, the latter must be held liable jointly and severally liable thereon. Thus, there was no need for the petitioner to file its money claim before the probate court. Finally, the petitioner stresses that both surviving heirs are being sued in their respective personal capacities, not as heirs of the deceased.In her comment to the petition, respondent Florence S. Ariola maintains that the petitioner is trying to recover a sum of money from the deceased Efraim Santibañez; thus the claim should have been filed with the probate court. She points out that at the time of the execution of the joint agreement there was already an existing probate proceedings of which the petitioner knew about. However, to avoid a claim in the probate court which might delay payment of the obligation, the petitioner opted to require them to execute the said agreement.According to the respondent, the trial court and the CA did not err in declaring that the agreement was null and void. She asserts that even if the agreement was voluntarily executed by her and her brother Edmund, it should still have been subjected to the approval of the court as it may prejudice the estate, the heirs or third parties. Furthermore, she had not waived any rights, as she even stated in her answer in the court a quo that the claim should be filed with the probate court. Thus, the petitioner could not invoke or claim that she is in estoppel.Respondent Florence S. Ariola further asserts that she had not signed any continuing guaranty agreement, nor was there any document presented as evidence to show that she had caused herself to be bound by the obligation of her late father.The petition is bereft of merit.

The Court is posed to resolve the following issues: a) whether or not the partition in the Agreement executed by the heirs is valid; b) whether or not the heirs’ assumption of the indebtedness of the deceased is valid; and c) whether the petitioner can hold the heirs liable on the obligation of the deceased.At the outset, well-settled is the rule that a probate court has the jurisdiction to determine all the properties of the deceased, to determine whether they should or should not be included in the inventory or list of properties to be administered.20 The said court is primarily concerned with the administration, liquidation and distribution of the estate.21

In our jurisdiction, the rule is that there can be no valid partition among the heirs until after the will has been probated:In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory. The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will.22

This, of course, presupposes that the properties to be partitioned are the same properties embraced in the will.23In the present case, the deceased, Efraim Santibañez, left a holographic will24 which contained, inter alia, the provision which reads as follows:(e) All other properties, real or personal, which I own and may be discovered later after my demise, shall be distributed in the proportion indicated in the immediately preceding paragraph in favor of Edmund and Florence, my children.

We agree with the appellate court that the above-quoted is an all-encompassing provision embracing all the properties left by the decedent which might have escaped his mind at that time he was making his will, and other properties he may acquire thereafter. Included therein are the three (3) subject tractors. This being so, any partition involving the said tractors among the heirs is not valid. The joint agreement25 executed by Edmund and Florence, partitioning the tractors among themselves, is invalid, specially so since at the time of its execution, there was already a pending proceeding for the probate of their late father’s holographic will covering the said tractors.It must be stressed that the probate proceeding had already acquired jurisdiction over all the properties of the deceased, including the three (3) tractors. To dispose of them in any way without the probate court’s approval is tantamount to divesting it with jurisdiction which the Court cannot allow.26 Every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.27 Thus, in executing any joint agreement which appears to be in the nature of an extra-judicial partition, as in the case at bar, court approval is imperative, and the heirs cannot just divest the court of its jurisdiction over that part of the estate. Moreover, it is within the jurisdiction of the probate court to determine the identity of the heirs of the decedent.28 In the instant case, there is no showing that the signatories in the joint agreement were the only heirs of the decedent. When it was executed, the probate of the will was still pending before the court and the latter had yet to determine who the heirs of the decedent were. Thus, for Edmund and respondent Florence S. Ariola to adjudicate unto themselves the three (3) tractors was a premature act, and prejudicial to the other possible heirs and creditors who may have a valid claim against the estate of the deceased.

The question that now comes to fore is whether the heirs’ assumption of the indebtedness of the decedent is binding. We rule in the negative. Perusing the joint agreement, it provides that the heirs as parties thereto "have agreed to divide between themselves and take possession and use the above-described chattel and each of them to assume the indebtedness corresponding to the chattel taken as herein after stated which is in favor of First Countryside Credit Corp."29 The assumption of liability was conditioned upon the happening of an event, that is, that each heir shall take possession and use of their respective share under the agreement. It was made dependent on the validity of the partition, and that they were to assume the indebtedness corresponding to the chattel that they were each to receive. The partition being invalid as earlier discussed, the heirs in effect did not receive any such tractor. It follows then that the assumption of liability cannot be given any force and effect.The Court notes that the loan was contracted by the decedent. The petitioner, purportedly a creditor of the late Efraim Santibañez, should have thus filed its money claim with the probate court in accordance with Section 5, Rule 86 of the Revised Rules of Court, which provides:Section 5. Claims which must be filed under the notice. If not filed barred; exceptions. — All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.The filing of a money claim against the decedent’s estate in the probate court is mandatory.30 As we held in the vintage case of Py Eng Chong v. Herrera:31

… This requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. The plain and obvious design of the rule is the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees, or heirs. `The law strictly requires the prompt presentation and disposition of the claims against the decedent's estate in order to settle the affairs of the estate as soon as possible, pay off its debts and distribute the residue.32

Perusing the records of the case, nothing therein could hold private respondent Florence S. Ariola accountable for any liability incurred by her late father. The documentary evidence presented, particularly the promissory notes and the continuing guaranty agreement, were executed and signed only by the late Efraim Santibañez and his son Edmund. As the petitioner failed to file its money claim with the probate court, at most, it may only go after Edmund as co-maker of the decedent under the said promissory notes and continuing guaranty, of course, subject to any defenses Edmund may have as against the petitioner. As the court had not acquired jurisdiction over the person of Edmund, we find it unnecessary to delve into the matter further.We agree with the finding of the trial court that the petitioner had not sufficiently shown that it is the successor-in-interest of the Union Savings and Mortgage Bank to which the FCCC assigned its assets and liabilities.33 The petitioner in its complaint alleged that "by virtue of the Deed of Assignment dated August 20, 1981 executed by and between First Countryside Credit Corporation and Union Bank of the Philippines…"34 However, the documentary evidence35 clearly reflects that the parties in the deed of assignment with assumption of liabilities were the FCCC, and the Union Savings and Mortgage Bank, with the conformity of Bancom Philippine Holdings, Inc. Nowhere can the petitioner’s participation therein as a party be found. Furthermore, no documentary or testimonial evidence was presented during trial to show that Union Savings and Mortgage Bank is now, in fact, petitioner Union Bank of the Philippines. As the trial court declared in its decision:

… [T]he court also finds merit to the contention of defendant that plaintiff failed to prove or did not present evidence to prove that Union Savings and Mortgage Bank is now the Union Bank of the Philippines. Judicial notice does not apply here. "The power to take judicial notice is to [be] exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative." (Republic vs. Court of Appeals, 107 SCRA 504).36

This being the case, the petitioner’s personality to file the complaint is wanting. Consequently, it failed to establish its cause of action. Thus, the trial court did not err in dismissing the complaint, and the CA in affirming the same.IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The assailed Court of Appeals Decision is AFFIRMED. No costs.SO ORDERED.

G.R. No. L-4963             January 29, 1953 MARIA USON, plaintiff-appellee, vs. MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.Brigido G. Estrada for appellant.BAUTISTA ANGELO, J.:This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan.Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment.Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1).After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect.WHEREFORE, the decision appealed from is affirmed, without costs.Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

G.R. No. L-28040 August 18, 1972 TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, vs. TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,appellant. G.R. No L-28568 August 18, 1972 TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee, vs. JOSE DE BORJA, oppositor-appellant. G.R. No. L-28611 August 18, 1972 TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja,plaintiff-appellee, vs. JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.L-28040Pelaez, Jalandoni & Jamir for administrator-appellee.Quiogue & Quiogue for appellee Matilde de Borja.Andres Matias for appellee Cayetano de Borja.Sevilla & Aquino for appellant.L-28568Sevilla & Aquino for special administratrix-appellee.Pelaez, Jalandoni & Jamir for oppositor-appellant.L-28611Sevilla & Aquino for plaintiff-appellee.Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

 REYES, J.B.L., J.:pOf these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of the testate estate of Francisco de Borja, 1 from the approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator".Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as follows:A G R E E M E N TTHIS AGREEMENT made and entered into by and betweenThe heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco,A N DThe heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.W I T N E S S E T HTHAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims, etc., between them in connection with the administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the following terms and conditions:1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronillawith a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the proceeds of the sale of Jalajala, "Poblacion."3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines, amounting to approximately P30,000.00 and also assumes payment of her 1/5 share of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja.4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja.6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding receive thereof.7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph 1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedentleft no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless.The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco —shall be considered as full — complete payment — settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, ... and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise.It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance, the same was intended to have a resolutory period of 60 days for its effectiveness. In support of such contention, it is averred that such a limit was expressly stipulated in an agreement in similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following clause:III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners within the period of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no date, the day being left blank "this — day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor.If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden.Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case.Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the presumption in favor of its conjugal character established by Article 160 of the Civil Code.We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).The lot allotted to Francisco was described as —Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105)On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife.Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that —Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a bachelor and which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.The following shall be the exclusive property of each spouse:xxx xxx xxx(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony.As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible in the absence of cross examination.It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal character of the property in question; but as already noted, they are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.Fernando, J., took no part.

G.R. No. L-41715 June 18, 1976 ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the minors, petitioners, vs.LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of First Instance of Abra, respondents.Federico Paredes for petitioners.Demetrio V. Pre for private respondents.

 MARTIN, J:This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case.On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2

On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to give the name and residence of his executor, administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of parties in the case. The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased, within such time as may be granted ... ." The question as to whether an action survives or not depends on the nature of the action and the damage sued for. 6 In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant case the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the respondent Court ought to have known that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to appoint a qualified person as guardianad litem for them. Without pronouncement as to costs.SO ORDERED.

G.R. No. 118464 December 21, 1998 HEIRS OF IGNACIO CONTI and ROSARIO CUARIO, petitioner, vs.COURT OF APPEALS and LYDIA S. REYES as Attorney-in-Fact of JOSEFINA S. REYES, BERNARDITA S. PALILIO, HERMINIA S. PALILIO, REMEDIOS A. SAMPAYO, ILUMINADA A. SAMPAYO, ENRICO A. SAMPAYO CARLOS A. SAMPAYO, GENEROSO C. SAMPAYO, MYRNA C. SAMPAYO, ROSALINO C. SAMPAYO, MANUEL C. SAMPAYO, DELIA A. SAMPAYO, CORAZON C. SAMPAYO, NILO C. SAMPAYO, and LOLITA A. SAMPAYO in her own behalf and as Attorney-in-Fact of NORMA A. SAMPAYO, respondents.

 BELLOSILLO, J.:This petition for review on certiorari seeks to reverse the 30 March 1994. Decision and 21 December 1994 Resolution of respondent Court of Appeals which upheld the right of private respondents as heirs of Lourdes Sampayo to demand partition under Art. 494 of the Civil Code.Lourdes Sampayo and Ignacio Conti, married to Rosario Cuado, were the co-owners of the property in litigation consisting of a 539-square meter lot at the corner of Zamora and Abellanosa Streets, Lucena City, covered by TCT No. T-15374, with a house erected thereon. 1 On 17 March 1986 Lourdes Sampayo died intestate without issue. 2Subsequently, on 1 April 1987 private respondents Josefina S. Reyes, Bernardita S. Palilio, Herminia S. Palilio, Remedios A. Sampayo, Iluminada A. Sampayo, Enrico A. SAMPAYO, Carlos A. Sampayo, Gelleroso C. Sampayo, Myrna C. Sampayo, Rosalina C. Sampayo, Manuel C. Sampayo, Delia. A. Sampayo, Corazon C. Sampayo, Nilo C. Sampayo, Lolita A. Sampayo and Norma A. Sampayo, all represented by their Attorney-in-Fact Lydia S. Reyes, with Lolita A. Sampayo acting also in her own behalf and as Attorney-in-Fact of Norma A. Sampayo, all claiming to be collateral relatives of the deceased Lourdes Sampayo, filed an action for partition and damages before RTC-Br. 54, Lucena City. 3

The spouses Ignacio Conti and Rosario Cuario refused the partition on the ground that private respondents failed to produce any document to produce that they were the rightful heirs of Lourdes Sampayo. 4 On 30 August 1987 Ignacio Conti died and was substituted as party-defendant by his children Asuncion, Francisco, Milagros, Joselito, Luisito, Diego and Teresita, all surnamed Conti. 5

At the trial, private respondents presented Lydia Sampayo Reyes and Adelaida Sampayo to prove that they were the collateral heirs of the deceased Lourdes Sampayo and therefore entitled to her rights as co-owner of the subject lot. Bringing with her the original copy of her certificate of live birth showing that her father was Inocentes Reyes and her mother was Josefina Sampayo, 6 Lydia Sampayo Reyes testified that she was one of the nieces of Lourdes Sampayo, being the daughter of Josefina Sampayo, the only living sibling of Lourdes. Lydia also testified that Lourdes had another sister named Remedios J. Sampayo who died in 1948, and two brothers, Manuel J. Sampayo and Luis J. Sampayo who died in 1983 and 1960, respectively. To prove that Josefina, Remedios, Luis and Manuel were siblings of Lourdes, their baptismal certificates together with a photocopy of the birth certificate of Manuel Sampayo were offered in evidence. These documents showed that their father and mother, like Lourdes Sampayo, were Antonio Sampavo and Brigida Jaraza.The certificates of baptism presented as part of the testimony of Lydia Sampayo Reyes were prepared by Rev. Franklin C. Rivero who duly certified that all data therein written were in accordance with the church records, hence, the lower left portion of the documents bearing the seal of the church with the notation as to where the documents were logged in particular. 7 The baptismal certificates were presented in lieu of the birth certificates because the repository of those documents, the Office of the Civil Registrar of Lucena City, had been razed by fire On two separate occasions, 27 November 1974 and 30 August 1983, thus all civil registration records were totally burned. 8 On the other hand, a photocopy of Manuel's birth certificate dated 25 October 1919 (Exh. "I") 9 showed that it was issued by the Local Civil Registrar of Lucena, Tayabas (now Lucena City).Adelaida Sampayo, widow of Manuel Sampayo, testified that her husband Manuel was the brother of the deceased Lourdes, and with the death of Manuel, Luis and Remedios, the only living sibling of Lourdes was Josefina. 10

To rebut whatever rights the alleged heirs of Lourdes had over the subject lot, petitioners presented Rosario Cuario Conti, Rosal Ladines Malundas and Rodolfo Espineli. Rosario testified that the subject property was co-owned in equal shares by her husband Ignacio Conti and Lourdes Sampayo and that her family (Rosario) had been staying in the subject property since 1937. 11 In fact, she said that her late husband Ignacio Conti paid for the real estate taxes 12 and spent for the necessary repairs and improvements thereon 13 because by agreement Lourdes would leave her share of the property to them. 14

However, as correctly found by the trial court, no will, either testamentary or holographic, was presented by petitioners to substantiate this claim. 15 Rosario also disclosed that when Lourdes died her remains were taken by her-relatives from their house. 16 When cross examined on who those relatives were, she replied that the only one she remembered was Josefina since there were many relatives who came. When asked who Josefina's parents were, she said she could not recall. Likewise, when asked who the parents of Lourdes were, Rosario denied having ever known them. 17

Another witness, Rosa Ladines Malundas, narrated that she used to be the neighbor and hairdresser of the deceased Lourdes Sampayo who told her that upon her death her share would go to Ignacio Conti whom she considered as her brother since both of them were "adopted" by their foster parents Gabriel Cord and Anastacia Allarey Cord, 18 although she admitted that she did not know whether Lourdes had other relatives. 19

According to another witness, Rodolfo Espineli, he took pictures of the tombs bearing the tombstones of Gabriel Cord and Anastacia Allarey Cord and Ignacio Conti as well as that of Lourdes Sampayo who was supposed to have been interred beside her "adoptive" parents. However, as revealed by Rosario during her direct examination, Lourdes was not in fact interred there because her relatives took her remains. 20

On 4 April 1991 the trial court declared private respodents as the rightful heirs of Lourdes Sampayo. It further ordered private respondents and petitioners to submit a project of partition of the residential house and lot for confirmation by the court. 21

Petitioners elevated the case to the Court of Appeals contending that the trial court erred in finding that private respondents were the heirs of Lourdes Sampayo and that they were entitled to the partition of the lot and the improvements thereon. 22

On 30 March 1994 the Court of Appeals affirmed the assailed RTC decision and held 23

In the instant case, plaintiffs [now private respondents] were able to prove and establish by preponderance of evidence that they are the collateral heirs of deceased Lourdes Sampayo and therefore the lower court did not err in ordering herein plaintiffs [now private respondents] and defendants [now petitioners] to submit a project of partition of the residential house and lot owned in common by the deceased Lourdes Sampayo and defendant spouses Conti for confirmation by the court . . . . Considering our earlier finding that the lower court did not err in declaring herein plaintiffs [now private respondents] as heirs of deceased Sampayo and therefore entitled to inherit her property, the argument of the appellants [now petitioners] that the plaintiffs [now private respondents] are not entitled, to partition is devoid of merit (insertions in 11 supplied).Respondent court also ruled, citing Hernandez v. Padua 24 and Marabilles v. Quito, 25 that a prior and separate judicial declaration of heirship was not necessary 26 and that private respondents became the co-owners of the portion of the property owned and registered in the name of Lourdes Sampayo upon her death and, consequently, entitled to the immediate possession thereof and all other incidents/rights of ownership as provided for by law, including the right to demand partition under Art. 777 of the Civil Code, 27 and Ilustre v. Alaras Frondosa 28 holding that the property belongs to the heirs at the moment of death of the decedent, as completely as if he had executed and delivered to them a deed for the same before his death.

The appellate court subsequently denying a motion for reconsideration upheld the probative value of the documentary and testimonial evidence of private respondents and faulted petitioners for not having subpoenaed Josefina if they believed that she was a vital witness in the case. 29 Hence, petitioners pursued this case arguing that a complaint for partition to claim a supposed share of the deceased co-owner cannot prosper without prior settlement of the latter's estate and compliance with all legal requirements especially publication, and private respondents were not able to prove by competent evidence their relationship with the deceased. 30

There is no merit in the petition. A prior settlement of the estate is not essential before the heirs can commence any action originally pertaining to the deceased as we explained in Quison v. Salud 31 —Claro Quison died in 1902. It was proven at the trial that the present plaintiffs are next of kin and heirs, but it is said by the appellants that they are not entitled to maintain this action because there is no evidence that any proceedings have been taken in court for the settlement of the estate of Claro Quison; and that without such settlement, the heirs cannot maintain this action. There is nothing in this point. As well by the Civil Code as by the Code of Civil Procedure, the title to the property owned by a person who dies intestate passes at once to his heirs. Such transmission is, under the present law, subject to the claims of administration and the property may be taken from the heirs for the purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the death of the intestate, from himself to his heirs. Without some showing that a judicial administrator had been appointed in proceedings to settle the estate of Claro Quison, the right of the; plaintiffs to maintain this action is established.Conformably with the foregoing and taken in conjunction with Arts. 777 and 494 32 of the Civil Code, from the death of Lourdes Sampayo her rights as a co-owner, incidental to which is the right to ask for partition at any time or to terminate the co-ownership, were transmitted to her rightful heirs. In so demanding partition private respondents merely exercised the right originally pertaining to the decedent, their predecessor-in-interest.

Petitioners' theory as to the requirement of publication would have been correct had the action been for the partition of the estate of Lourdes Sampayo, or if we were dealing with extrajudicial settlement by agreement between heirs and the summary settlement of estates of small value. 33 But what private respondents are pursuing is the mere segregation of Lourdes' one-half share which they inherited; from her through intestate succession. This is a simple case of ordinary partition between co-owners. The applicable law in point is Sec. 1 of Rules 69 of the Rules of Court —Sec. 1. Complaint in an action for partition of real estate. — A person having the right to compel the partition of real estate may do so as in this rule prescribed, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all the other persons interested in the property.A cursory reading of the aforecited rule shows that publication is not required as erroneously maintained by petitioners. There are two (2) simultaneous issues in an action for partition. First, whether the plaintiff is indeed a co-owner of the property sought to be partitioned, and second, if answered in the affirmative, the manner of the division of the property, i.e., what portion should go to which co-owner. 34 Thus, in this case, we must determine whether private respondents, by preponderance of evidence, have been able to establish that they are co-owners by way of succession as collateral heirs of the late Lourdes Sampayo as they claim to be, either a sister, a nephew or a niece. These, private respondents were able to prove in the trial court as well as before respondent Court of Appeals.Petitioners however insist that there was no such proof of filiation because: (a) mere photocopies of birth certificates do not prove filiation; (b) certifications on non-availability of records of birth do not prove filiation; (c) baptismal certificates do not prove filiation of alleged collateral relatives of the deceased; and, (d) the testimonies of Lydia S. Reyes, alleged daughter of Josefina Reyes, and Adelaida Sampayo, alleged sister-in-law of Josefina and Lourdes, were incompetent as Lydia was made to testify on events which happened before her birth while Adelaida testified on matters merely narrated to her. 35

We are not persuaded. Altogether, the documentary and testimonial evidence submitted that private respondents are competent and adequate proofs that private respondents are collateral heirs of Lourdes Sampayo. Private respondents assert that they are co-owners of one-half (1/2) pro-indiviso share of the subject property by way of legal or intestate succession.Succession is a mode of acquisition by vietue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or others either by his will or by operation of law. 36 Legal or intestate succession takes place if a person dies without a will, or with a void will, or one which has subsequently lost its validity. 37 If there are no descendants, ascendants, illegitimate children, or a surviving spuoses, the collateral relatives shall succeed to the entire estate of the decedent. 38 It was established during the trial that Lourdes died intestate and without issues. Private respondents as sister, nephews and nieces now claim to be the collateral relatives of Lourdes.Under Art. 172 of the Family Code, 39 the filiation of ligitimate children shall be proved by any other means allowed by the Rules of Court and special laws, in the absence of a record of birth or a parent's admission of such legitimate filiation in a public or private document duly signed by the parent. Such other proof of one's filiation may be a baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule 130 of the Rules of Court. 40 By analogy, this method of proving filiation may also be utilized in the instant case.Public documents are the written official acts, or records of the official act of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. 41 The baptismal certificates presented in evidence by private respondents are public documents. Parish priests continue to be the legal custodians of the parish records and are authorized to issue true copies, in the form of certificates, of the entries contained therein. 42

The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28 Phil.105 [1914], 43 thus.

. . . the entries made in the Registry Book may be considered as entries made in the course of the business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during this course of its business.It may be argued that baptismal certificates are evidence only of the administration of the sacrament, but in this case, there were four (4) baptismal certificates which, when taken together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove filiation.Petitioners' objection to the photocopy of the certificate of birth of Manuel Sampayo was properly discarded by the court a quo and respondent Court of Appeals. According to Sec. 3, par. (1), Rule 130, of the Rules of Court, when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself except when the original has been lost or destroyed or cannot be produced in court, without bad faith on the part of the offeror. The loss or destruction of the original certificate of birth of Manuel T. Sampayo was duly established by the certification issued by the Office of the Local Civil Registrar of Lucena City to the effect that its office was completely destroyed by fire on 27 November 1974 and 30 August 1983, respectively, and as a consequence thereof, all civil registration records were totally burned.

Apparently, there seems to be some merit in petitioners' contention that the testimony of Adelaida Sampayo cannot prove filiation for being hearsay considering that there was no declaration ante litem motam as required by the rules, i.e., that the declaration relating to pedigree was made before the controversy occurred. Nonetheless, petitioners made no move to dispute her testimony in open court when she was mentioning who the brothers and sisters of Lourdes were. As correctly observed by the trial court in explicit terms, "the documentary and testimonial evidence not were not disputed by defendants" (now petitioners). 44 Notably, when Rosario Cuario Conti took the witness stand, she admitted that she was not aware of the identities of the parents of the deceased. Clearly, this runs, counter to the relationship akin to filial bonding which she professed she had enjoyed with the decedent. As wife of Ignacio Contil, she was supposedly a "sister-in-law" of the deceased Lourdes Sampayo who regarded Ignacio as a brother. However, in sum, we rule that all the pieces of evidence adduced, taken together, clearly preponderate to the right of private respondents to maintain the action for partition. Absent any reversible error in the assailed Decision and Resolution of the Court of Appeals, this petition for review on certiorari will not lie.WHEREFORE, the petition is DENIED. The assailed Decision dated 30 March 1994 and Resolution dated 21 December 1994 of the Court of Appeals are AFFIRMED. Costs against petitioners.SO ORDERED.

G.R. No. 149017             November 28, 2008 VALENTE RAYMUNDO,petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.

D E C I S I O NNACHURA, J.:This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision1and Resolution2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders3 in Civil Case No. 51203.First, the long settled facts.Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties).After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,7executed an Extrajudicial Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON;WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors;WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased;

NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit:1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit:(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank.2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit:(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an assessed value of P4,150.00.(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value ofP560.00.(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P440.00.

(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00.(e) Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00.(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00.(g) A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00.(h) TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso.Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof.

In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about P70,000.00.9

When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount ofP94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties.Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution.

Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are co-owned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale.Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus:We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of regularity.

Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a half-hearted complaint to annul the proceedings which they allowed to be dismissed by not diligently prosecuting it.In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted improperly in filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the land.WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners.11

On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case No. 51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal and directed the issuance of alias summons.

Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss Civil Case No. 51203. The CA granted their petition, thus:And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos. 21376 - 21379 does not preclude the application of the doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they were admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties, not only where the parties in both actions are the same, but where there is privity with them as in the cases of successors-in-interest by title subsequent to the commencement of the action or where there is substantial identity.Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39.WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled; further respondent judge is ordered to dismiss Civil Case No. 51203.12

From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals,13 we reversed the appellate court, thus:Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial court.It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land [subject properties] should have been the subject of the auction sale.The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:

The rights to the succession are transmitted from the moment of the death of the decedent."Article 888 further provides:"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."Article 892, par. 2 likewise provides:"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents] became co-owners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest.WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.It was at this point when another series of events transpired, culminating in the present petition.

Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente. Moreover, even at that stage, when the case had been remanded with a directive to "determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case No. 51203 had to be re-raffled and transferred, for varied reasons, to the different court branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for the purported failure of herein respondents to prosecute the case. Most of these Motions to Dismiss were denied.With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC, Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to wit:1. The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O. Loquinario;2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or furniture of its own, and was still undermanned;3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall;4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case, and as per standing instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to branch 69, because of the unexpected notice we received that the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building;6. That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was transferred;

7. That it was only later on that this office discovered that important documents were indeed lost, including transcripts of stenographic notes in a case that was submitted for decision;8. That sometime in May 1992, the branch moved its Office to its present location;9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals;10. That it was at this time that the first volume of this case, which was bundled along with other cases which were decided and/or archived, was reported as missing;11. That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room with, as well as the Court of Appeals, in the event that the same was transmitted to said Court;12. That all the efforts were in vain, as said record could not be located anywhere;13. That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted with the use of documents in the possession of the parties, or documents entered as exhibits in other Courts.14

In this regard, herein respondents filed a Motion for Reconstitution of Records15 of the case. Initially, petitioner Valente, and the other defendants -- Violeta, Virginia and Maria Concepcion -- opposed the motion.16 However, the trial court eventually granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the case.17

Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth mentioning, to wit:

1. A Motion for Leave to File and Admit Supplemental Complaint18 filed by herein respondents. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside, as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further sought a re-bidding with respect to Teofista's share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez, married to Teofista Isagon, be reinstated.2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme Court)19 filed by herein respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid price of P94,170.00, for a judgment obligation worth only P70,000.00.3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs]20 filed by therein defendants, including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:

2. The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992, the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs hence the above matters need be litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to the plaintiffs alleged heirs).On these incidents, the records reveal the following Orders issued by the different branches of the RTC:1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein respondents' Supplemental Complaint.21

2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court), and (b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written Interrogatories.22 The RTC, Branch 67, resolved the incidents, thus:From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial dispute, should be implemented for the following reasons:x x x xOn the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed facts, which binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time.WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which mandates that:

"xxx and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion."In order to enforce such mandate of the Supreme Court, this court orders that:a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void.b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez.c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order, and failing which, the portion of the estate of Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution.d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in order for this court to determine the portion in the estate which belongs to Teofista Suarez.Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29, 1996.3. Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and, therefore, not appealable.23

4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m.

In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case.24

This last Order and therein defendants' Urgent Motion spawned another contentious issue between the parties. In this connection, Judge Estrella issued an Order25 requiring the parties to file their respective position papers due to the "divergent views on the nature of the hearing that should be conducted in compliance with" our decision in Suarez. Both parties duly filed their position papers, with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957.In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads, in part:This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings.x x x xIt is a matter of record that there was no trial on the merits completed in the Regional Trial Court. xxx The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs' [herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is in this context that the Honorable Supreme Court reinstated the "action [of herein respondents] to annul the auction sale to protect their [herein respondents] own interest.While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is, however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that -

The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA 119, 128). The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left with no choice but to obey said latter doctrine.WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999" this case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding consistent with said latest ruling.26

Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14, 2000.27

Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's Orders dated January 11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:We agree with [herein respondents].

On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null and void. xxxx x x xHon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme Court xxx.x x x x[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996. Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of the notice of appeal dated September 6, 1996 had also become final and executory.The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for certiorari.Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because:1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory, and therefore, not appealable; and2. The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario28 which held that a declaration of heirship must be made in a special proceeding and not in a civil action.We find the petition bereft of merit.

At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action for certiorari. The CA decision disposed of the merits of a special civil action, an original petition, filed thereat by herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as petitioner Valente, via Rule 45.On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof.Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after declaring it to be interlocutory."We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory, and a final order which disposes of the controversy or case; much less, understand the available remedies therefrom.We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy.29 It does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits.30 Upon the other hand, a final order is one which leaves to the court nothing more to do to resolve the case.31

On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., "Does it leave something to be done in the trial court with respect to the merits of the case?" If it does, it is interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case.32 The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr.Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of Appeal attained finality when he failed to file a petition for certiorariunder Rule 65 of the Rules of Court.We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus:SEC. 2. Judgments or orders subject to appeal.-Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other.x x x xWith the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order, thus:SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.No appeal may be taken from:x x x(c) An interlocutory order;x x xIn all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct.Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition forcertiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely disposed of the merits of the case with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as previously discussed, a petition for review on certiorari under Rule 45 of the Rules of Court.In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari under Rule 65, when the proper remedy is an appeal by certiorari under Rule 45.In the recent case of Jan-Dec Construction Corporation v. Court of Appeals33 we ruled in this wise:As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules.Under Rule 45, decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to the Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil action for certiorari under Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal.Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be dismissed for lack of merit.

Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario,34 herein respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is, undisputedly, conjugal property of Teofista and Marcelo Sr.We disagree. Our ruling in Heirs of Yaptinchay is not applicable.Herein respondents' status as legitimate children of Marcelo Sr. and Teofista ― and thus, Marcelo Sr.'s heirs ― has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals.35 True, this Court is not a trier of facts,36 but as the final arbiter of disputes,37 we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez required herein respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong.As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion." There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein respondents, and the latter's status as legitimate children:1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and38

2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as children of Teofista, merely successors-in-interest of the latter to the property and by virtue thereof, bound by the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata.39 We subsequently reversed this ruling on the wrong application of res judicata in the conclusive case of Suarez. We retained and affirmed, however, the CA's factual finding of herein respondents' status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the property not because of [Teofista] but through their own right as children of their deceased father [, Marcelo Sr.]."Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale.Articles 262,40 263,41 265 and 26642 of the Civil Code, the applicable law at the time of Marcelo's death, support the foregoing conclusion, to wit:Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases:(1) If the husband should die before the expiration of the period fixed for bringing his action;(2) If the husband should die after the filing of the complaint, without having desisted from the same;(3) If the child was born after the death of the husband.Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs.If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud.Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment.

Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child.In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they had been declared the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the properties she owns in common with her children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably.Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment obligation is solely Teofista's, and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently conjugal properties and were, in fact, even titled in the name of Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs.Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 77843of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or combination of heirs, prevailing over all kinds of succession.44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Herein respondents are primary compulsory heirs,45 excluding secondary compulsory heirs,46 and preferred over concurring compulsory heirs in the distribution of the decedent's estate.47

Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed that herein respondents' rights to the succession vested from the moment of their father's death.48 Herein respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share therein was null and void.In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a portion of the subject properties, only that portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties.We note the recent case of Portugal v. Portugal-Beltran,49 where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio v. Court of Appeals,51 and Guilas v. CFI Judge of Pampanga52 cited in Solivio. We ruled thus:The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues, heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heirs has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein.x x xIt appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceedings. And it is superfluous in light of the fact that the parties to the civil case-subject of the present case, could and had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial.In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugal's estate to administration proceedings since a determination of petitioners' status as heirs could be achieved in the civil case filed by petitioners xxx.53

All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a separate special proceeding for a declaration of their heirship.WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos are REINSTATED. Costs against the petitioner.SO ORDERED.

G.R. No. 137548             September 3, 2007 HEIRS OF THE LATE DOMINGO N. NICOLAS, petitioners, vs.METROPOLITAN BANK & TRUST COMPANY, respondent.

D E C I S I O NSANDOVAL-GUTIERREZ, J.:For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Decision1 of the Court of Appeals ( Sixteenth Division) dated January 14, 1999 in CA-G.R. SP No. 49926.The facts of the case are not in dispute, thus:Spouses Domingo and Josefa Nicolas are the registered owners of two (2) parcels of land located at Sanville Subdivision, Quezon City as evidenced by Transfer Certificates of Title (TCT) Nos. 156339 and 156341 of the Registry of Deeds, same city. On these lots is the residential house of spouses Nicolas and their two children, herein petitioners. These properties are conjugal.On May 19, 1986, Domingo Nicolas passed away.On June 11, 1988, a fire gutted the office of the Register of Deeds of Quezon City. Among the records destroyed were the original copies of TCTs Nos. 156339 and 156341.Sometime in 1988, Josefa Nicolas, the surviving spouse of Domingo, filed with the Land Registration Administration (LRA) an application for reconstitution of the two (2) land titles.In 1991, the LRA approved the application and ordered the reconstitution of the destroyed TCTs but only in the name of applicant Josefa Nicolas.In 1998, petitioners learned that their mother mortgaged the lots with the Metropolitan Bank & Trust Co., herein respondent; that the mortgage had been foreclosed; that respondent had the land titles consolidated in its name; and that respondent filed with the Regional Trial Court (RTC), Branch 77, Quezon City a petition for the issuance of a writ of possession (LRC Case No. Q-8019[96]) which was granted on January 15, 1998.Petitioners then filed with the RTC, Branch 22, Quezon City Civil Case No. Q-98-34312 for Annulment of Reconstituted Titles, Mortgage and Sale at Public Auction. This case is still pending trial.

Petitioners also filed with the RTC, Branch 77, Quezon City a motion to quash the writ of possession, but it was denied on September 10, 1998. Thereupon, they filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 49926. However, the appellate court dismissed the petition. It held that the trial court, in issuing the writ of possession in favor of the respondent, did not commit grave abuse of discretion amounting to lack or excess of jurisdiction considering that the trial court has the ministerial task to issue such writ.Petitioners seasonably filed a motion for reconsideration, but this was denied by the Court of Appeals in its Resolution of February 24, 1999.Hence, the instant petition.Petitioners contend that the Court of Appeals erred in dismissing their petition for certiorari, invoking our ruling inRivero de Ortega v. Natividad2 which reads:The general rule is that after a sale has been made under a decree in a foreclosure suit, the court has the power to give possession to the purchaser, and the latter will not be driven to an action in law to obtain possession. The power of the court to issue a process and place the purchaser in possession, is said to rest upon the ground that it has power to enforce its own decrees and thus avoid circuitous actions and vexatious litigation. But where a party in possession was not a party to the foreclosure, and did not acquire his possession from a person who was bound by the decree, but who is a mere stranger and who entered into possession before the suit was begun, the court has no power to deprive him of possession by enforcing the decree. Thus, it was held that only parties to the suit, persons who came in under them pendente lite, and trespassers or intruders without title, can be evicted by a writ of possession. The reason for this limitation is that the writ does not issue in case of doubt, nor will a question of legal title be tried or decided in proceedings looking to the exercise of the power of the court to put a purchaser in possession. A very serious question may arise upon full proofs as to where the legal title to the property rests, and should not be disposed of in a summary way. The petitioner, it is held, should be required to establish his title in a proceeding directed to that end.

Here, petitioners as children and, therefore, compulsory heirs of spouses Nicolas, acquired ownership of portions of the lots as their legitime upon the death of their father or prior to the foreclosure of mortgage and the filing by the respondent of its petition for the issuance of a writ of possession. Consequently, petitioners are strangers or third parties therein whose rights cannot be determined as they were not impleaded by respondent. Verily, they should not be deprived of their legitime by the enforcement of the writ of possession. Clearly, therefore, the writ of possession should not include parts of the two lots pertaining to petitioners.Records indicate that the estate of Domingo Nicolas has not been judicially or extra-judicially settled.It is basic that after consolidation of title in the buyer’s name for failure of the mortgagor to redeem, the writ of possession becomes a matter of right3 and its issuance to a purchaser in an extra-judicial foreclosure is merely a ministerial function.4 However, considering the circumstances obtaining in this case and following our ruling in Rivero de Ortega, earlier cited, we hold that such writ of possession should apply only to the share of Josefa as may be determined in Civil Case No. Q-98-34312 or in any other proceeding that may be instituted by petitioners for the purpose of settling the undivided estate of Domingo Nicolas.WHEREFORE, we GRANT the petition. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 49926 isMODIFIED in the sense that the writ of possession issued by the RTC, Branch 77, Quezon City in LRC Case No. Q-8019(96) shall apply only to such portion of the lots pertaining to Josefa Nicolas as may be determined in Civil Case No. Q-98-34312 or in any other proper proceeding which petitioners may file.SO ORDERED.

II. Testamentary/ Testate Succession

A. Characteristics & Construction of Wills, Testamentary Capacity & Intent (Arts. 783-803)

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner, vs.THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.

 SARMIENTO, J.:This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2the alleged advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila.On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate." 4

Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides:We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors.

We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5

The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 ... ."7

On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9

The dispositive portion of the decision of the Court of Appeals states:WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private respondent. 10

In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. 13

The petition is meritorious.

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings:xxx xxx xxx... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if any, upon the death of either, belonged to the survivor. 17

xxx xxx xxxIn Macam v. Gatmaitan, 18 it was held:xxx xxx xxx

This Court is of the opinion 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. 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. 19

xxx xxx xxxThere is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 20

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other.

It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool.The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code.24

Under Article 2010 of the Code:ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other.However, as we have warned:xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case. 26

xxx xxx xxxThere is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership.The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased.WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.No costs.SO ORDERED.

G.R. No. 174489               April 11, 2012

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, Petitioners, vs.LORENZO LAXA, Respondent.

D E C I S I O NDEL CASTILLO, J.:It is incumbent upon those who oppose the probate of a will to clearly establish that the decedent was not of sound and disposing mind at the time of the execution of said will. Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his estate in the manner provided in his will so long as it is legally tenable.1

Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision4 of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia Regala (Paciencia), to wit:WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.SO ORDERED.5

Also assailed herein is the August 31, 2006 CA Resolution6 which denied the Motion for Reconsideration thereto.Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of the RTC which disallowed the notarial will of Paciencia.Factual AntecedentsPaciencia was a 78 year old spinster when she made her last will and testament entitled "Tauli Nang Bilin o Testamento Miss Paciencia Regala"7 (Will) in the Pampango dialect on September 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament. She thereafter affixed her signature at the end of the said document on page 38 and then on the left margin of pages 1, 2 and 4 thereof.9

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to the Will’s due execution by affixing their signatures below its attestation clause10 and on the left margin of pages 1, 2 and 4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public.Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa, thus:x x x xFourth - In consideration of their valuable services to me since then up to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would decide to bequeath since they are the children of the spouses;x x x x[Sixth] - Should other properties of mine may be discovered aside from the properties mentioned in this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as stated in my testament. x x x12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated Paciencia as his own mother.13Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the Will or on September 19, 1981, Paciencia left for the United States of America (USA). There, she resided with Lorenzo and his family until her death on January 4, 1996.In the interim, the Will remained in the custody of Judge Limpin.More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition14 with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.There being no opposition to the petition after its due publication, the RTC issued an Order on June 13, 200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin testified that she was one of the instrumental witnesses in the execution of the last will and testament of Paciencia on September 13, 1981.16The Will was executed in her father’s (Judge Limpin) home office, in her presence and of two other witnesses, Francisco and Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four pages.18 She likewise positively identified the signature of her father appearing thereon.19 Questioned by the prosecutor regarding Judge Limpin’s present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery.20 The judge can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that her father can no longer testify in court.21

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition22 to Lorenzo’s petition. Antonio averred that the properties subject of Paciencia’s Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo.23

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition24 contending that Paciencia’s Will was null and void because ownership of the properties had not been transferred and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzo’s favor arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of the USA.26Petitioners prayed that Letters of Administration be instead issued in favor of Antonio.27

Later still on September 26, 2000, petitioners filed an Amended Opposition28 asking the RTC to deny the probate of Paciencia’s Will on the following grounds: the Will was not executed and attested to in accordance with the requirements of the law; that Paciencia was mentally incapable to make a Will at the time of its execution; that she was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; that the signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was obtained through fraud or trickery; and, that Paciencia did not intend the document to be her Will. Simultaneously, petitioners filed an Opposition and Recommendation29 reiterating their opposition to the appointment of Lorenzo as administrator of the properties and requesting for the appointment of Antonio in his stead.On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and Antonio to be appointed administrator since the former is a citizen and resident of the USA while the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin was recalled for cross-examination by the petitioners. She testified as to the age of her father at the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the time of the execution of the Will; and the lack of photographs when the event took place. 31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand. Monico, son of Faustino, testified on his father’s condition. According to him his father can no longer talk and express himself due to brain damage. A medical certificate was presented to the court to support this allegation. 32

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went to the USA and lived with him and his family until her death in January 1996; the relationship between him and Paciencia was like that of a mother and child since Paciencia took care of him since birth and took him in as an adopted son; Paciencia was a spinster without children, and without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only given to him after Paciencia’s death through Faustino; and he was already residing in the USA when the Will was executed.33 Lorenzo positively identified the signature of Paciencia in three different documents and in the Will itself and stated that he was familiar with Paciencia’s signature because he accompanied her in her transactions.34 Further, Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon Paciencia to execute the Will as he was not in the Philippines when the same was executed.35 On cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her arrival in the USA but that he saw a copy of the Will only after her death.36

As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.For petitioners, Rosie testified that her mother and Paciencia were first cousins.37 She claimed to have helped in the household chores in the house of Paciencia thereby allowing her to stay therein from morning until evening and that during the period of her service in the said household, Lorenzo’s wife and his children were staying in the same house.38 She served in the said household from 1980 until Paciencia’s departure for the USA on September 19, 1981.39

On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to sign at the latter’s house.40 Rosie admitted, though, that she did not see what that "something" was as same was placed inside an envelope.41 However, she remembered Paciencia instructing Faustino to first look for money before she signs them.42 A few days after or on September 16, 1981, Paciencia went to the house of Antonio’s mother and brought with her the said envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44Rosie further testified that Paciencia was referred to as "magulyan" or "forgetful" because she would sometimes leave her wallet in the kitchen then start looking for it moments later.45 On cross examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan" was based on her personal assessment,46 and that it was Antonio who requested her to testify in court.47

In his direct examination, Antonio stated that Paciencia was his aunt.48 He identified the Will and testified that he had seen the said document before because Paciencia brought the same to his mother’s house and showed it to him along with another document on September 16, 1981.49 Antonio alleged that when the documents were shown to him, the same were still unsigned.50 According to him, Paciencia thought that the documents pertained to a lease of one of her rice lands,51 and it was he who explained that the documents were actually a special power of attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a Will which would transfer her properties to Lorenzo and his family upon her death.52 Upon hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives [who should] benefit from my properties. Why should I die already?"53 Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, "I know nothing about those, throw them away or it is up to you. The more I will not sign them."54 After which, Paciencia left the documents with Antonio. Antonio kept the unsigned documentsand eventually turned them over to Faustino on September 18, 1981.55

Ruling of the Regional Trial CourtOn September 30, 2003, the RTC rendered its Decision56 denying the petition thus:

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the notarized will dated September 13, 1981 of Paciencia Regala.SO ORDERED.57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary capacity.58

Ruling of the Court of AppealsOn appeal, the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. The appellate court did not agree with the RTC’s conclusion that Paciencia was of unsound mind when she executed the Will. It ratiocinated that "the state of being ‘magulyan’ does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a Will."59 Moreover, the oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind. Further, no concrete circumstances or events were given to prove the allegation that Paciencia was tricked or forced into signing the Will.60

Petitioners moved for reconsideration61 but the motion was denied by the CA in its Resolution62 dated August 31, 2006.Hence, this petition.IssuesPetitioners come before this Court by way of Petition for Review on Certiorari ascribing upon the CA the following errors:I.THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S UTTER FAILURE TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;II.THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED63

The pivotal issue is whether the authenticity and due execution of the notarial Will was sufficiently established to warrant its allowance for probate.Our RulingWe deny the petition.Faithful compliance with the formalities laid down by law is apparent from the face of the Will.Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:Rule 75Production of Will. Allowance of Will Necessary.Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.Here, a careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will. Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of mind when she signed the same as well as the voluntary nature of said act.The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the shoulders of the petitioners.Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so much so that it effectively stripped her of testamentary capacity. They likewise claimed in their Motion for Reconsideration66 filed with the CA that Paciencia was not only "magulyan" but was actually suffering from paranoia.67

We are not convinced.We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will.68 Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. On the other hand, we find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the Will. "The testimony of subscribing witnesses to a Will concerning the testator’s mental condition is entitled to great weight where they are truthful and intelligent."69 More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New Civil Code states:Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CA’s finding that petitioners failed to discharge such burden.Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly pointed out by the CA:

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she executed. She specially requested that the customs of her faith be observed upon her death. She was well aware of how she acquired the properties from her parents and the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution of the will and was not included therein as devisee.70

Bare allegations of duress or influence of fear or threats, undue and improper influence and pressure, fraud and trickery cannot be used as basis to deny the probate of a will.An essential element of the validity of the Will is the willingness of the testator or testatrix to execute the document that will distribute his/her earthly possessions upon his/her death. Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear or threats; that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencia’s signature to be genuine, it was obtained through fraud or trickery. These are grounded on the alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former purportedly repudiated the Will and left it unsigned.We are not persuaded.We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her own son and that love even extended to Lorenzo’s wife and children. This kind of relationship is not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and raise their nephews and nieces and treat them as their own children. Such is a prevalent and accepted cultural practice that has resulted in many family discords between those favored by the testamentary disposition of a testator and those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencia’s relationship with Lorenzo and his family is different from her relationship with petitioners. The very fact that she cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was already married and already has children, highlights the special bond between them. This unquestioned relationship between Paciencia and the devisees tends to support the authenticity of the said document as against petitioners’ allegations of duress, influence of fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are not supported by concrete, substantial and credible evidence on record. It is worth stressing that bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to uphold said allegations.71 Furthermore, "a purported will is not [to be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact, whether x x x it will be probated would have to depend largely on the attitude of those interested in [the estate of the deceased]."72

Court should be convinced by the evidence presented before it that the Will was duly executed.Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule 76 of the Rules of Court was not complied with. It provides:RULE 76Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)They insist that all subscribing witnesses and the notary public should have been presented in court since all but one witness, Francisco, are still living.We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino had a heart attack, was already bedridden and could no longer talk and express himself due to brain damage. To prove this, said witness presented the corresponding medical certificate. For her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even remember his daughter’s name so that Dra. Limpin stated that given such condition, her father could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners neither interposed any objections to the testimonies of said witnesses nor challenged the same on cross examination. We thus hold that for all intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure of the said subscribing witness and of the notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as well as on the proof of her handwriting. It is an established rule that "[a] testament may not be disallowed just because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just because all the attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner required by law."731âwphi1Moreover, it bears stressing that "[i]rrespective x x x of the posture of any of the parties as regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it is the evidence before the court and/or [evidence that] ought to be before it that is controlling."74 "The very existence of [the Will] is in itself prima facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties affected thereby."75 This, coupled with Lorenzo’s established relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance for probate.

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.SO ORDERED.

B. Formalities of Wills

1. Ordinary Wills (Arts 804-809)

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 EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

 AQUINO, J.: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 aforged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?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-R; 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 Proceeding 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 thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, 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 laundrywoman 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 administratrix. 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 testatrix'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 proceeding 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 for 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 thumbmarks of the testatrix were procured by fraud or trick.Nenita further alleged that the institution of Marilyn as heir is void because of the preterition 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. Penaojas 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 win (pp. 124-125, Record).Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's sonbut 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 non-appearance 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 wig, 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 thumbmark to the will and that she did not know English, the language in which the win was written. (In the decree of probate Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not take into account the consequences of such a preterition.Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not the next of kin of the testatrix.Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to withdraw from various banks the deposits 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 Honorado was brought to 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 24, 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 win should have inherited the decedent's estate.A judge may be criminally liable or 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 lmpeachment of Horrilleno, 43 Phil. 212, 214-215).Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked 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. Firm Adm. Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).SO ORDERED.

G.R. No. 42258           September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant, vs.AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.Leodegario Azarraga for oppositor-appellant.DIAZ, J.:There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935, praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:1. That the testatrix did not personally place her thumbmark on her alleged will;2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will where she should place her thumbmarks;3. That the will in question was not signed by the testatrix on the date indicated therein;4. That the testatrix never made the will in question; and5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition to make it.We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in her brief have not been duly considered, whether some fact or detail which might have led us to another conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had a slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her still suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively well and conserved her mind and memory at least long after noon of September 7, 1933. She took her last nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who had been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the contents of the document and requested Attorney Almario to write her name where she had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney Almario proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to place the mark between her name and surname, after she herself had moistened the tip of her thumb with which she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above stated.In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that she never made said will because she was no longer physically or mentally in a condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.

Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of September 7, 1933, in the house of the deceased where they were then living, and that the first time that they saw him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the kitchen which was situated under the house. Under such circumstances it is not strange that the two did not see the testatrix when, according to the evidence for the petitioner, she made her will and signed it by means of her thumbmark. In order to be able to see her and also Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room where the deceased was, or at least the adjoining room where the will was prepared by Attorney Almario, but they did not do so.Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she could not move and that she could hardly be understood because she could no longer enunciate, making it understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two days before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have of record the testimony of the physician of the deceased and the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The two testified that two, three or four days before the death of the testatrix, they visited her in her home, the former professionally, and the latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a conversation. They stated that she spoke to them intelligently; that she answered all the questions which they had put to her, and that she could still move in spite of her weakness.In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration is unfounded.The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions not to open it until after her death; (2) that there are witnesses competent to testify on the letter in question, in addition to other evidence discovered later, which could not be presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the property in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not have had the intention to make the will in question, and (4) that said oppositor knew of the existence of said letter only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes.Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the will of the deceased but he did not do so because after seeing her he had been convinced that she could not make a will because she had lost her speech and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by the oppositor, are attached to both motions for a new trial.The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January 15, 1936, or eight months later.The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed from the decision of the lower court and it was her duty, under the circumstances, to inform this court of the discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof because, by so doing, she could better support her claim that the testatrix made no will, much less the will in question. Said evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in order that evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a) that it could not have been discovered in time, even by the exercise of due diligence; (b) that it be material, and (c) that it also be of such a character as probably to change the result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the letter in question before it, and no attempt was ever made to present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she made her will, September 7, 1933, she had not recovered consciousness and all her mental faculties to capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can not be newly discovered evidence of the character provided for by law, not only because it does not exclude the possibility that testatrix had somewhat improved in health, which possibility became a reality at the time she made her will because she was then in the full enjoyment of her mental faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court of First Instance, Attorney Viola was present, and the oppositor then could have very well called him to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150 of the transcript:Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will of the deceased in his favor on September 5, 1933.COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your Honor.COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am going waive the presentation of the witness Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.COURT: The court had already assumed beforehand that the other party would not admit that proposition.Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice to the other party's calling the witness it may wish to call.COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have been because she considered his testimony unimportant and unnecessary, and at the present stage of the proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered evidence.For the foregoing considerations, those stated by this court in the original decision, and the additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded immediately to the lower court. So ordered.Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.

G.R. No. L-4067            November 29, 1951In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs.JULIANA LACUESTA, ET AL., respondents.Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.PARAS, C.J.:This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

G.R. No. L-6285             February 15, 1912PEDRO BARUT, petitioner-appellant, vs.FAUSTINO CABACUNGAN, ET AL., opponents-appellees.A. M. Jimenez for appellant. Ramon Querubin for appellees.MORELAND, J.:This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose will is involved in this suit.This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering them together.In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the witnesses to the execution of the will.The court seems , by inference at least, to have had in mind that under the law relating to the execution of a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by the testator's name written by some other person in his presence, and by his expenses direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who signs the name of the testator for him must also sign his own name The remainder of the section reads:The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it is proven that the will was in fact signed and attested as in this section provided.From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's name signs also his own; but that it is not essential to the validity of the will. Whether one parson or another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an impossibility to draw from the words of the law the inference that the persons who signs the name of the testator must sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none the less valid, and the fact of such signature can be proved as perfectly and as completely when the person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute expressly declares is valid.There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the case last above stated gives an indication of what all of cases are and the question involved in each one of them. It says:The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the will.Held, That the will was not duly executed.All of the above cases are precisely of this character. Every one of them was a case in which the person who signed the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's name nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the following paragraph:Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this must be written by the witness signing at the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the person who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his own thereto. The decision in that case related only to that question.Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.Arellano, C.J., Mapa and Carson, JJ., concur.

Separate OpinionsTORRES, J., concurring:The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly require that, when the testator or testatrix is unable or does not know how to sign, the person who, in the presence and under the express direction of either of them, writes in the name of the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of the will that the said person so requested to sign the testator or testatrix write the name of either in his own handwriting.Since this court began to decide cases with regard to the form, conditions and validity of wills executed in accordance with the provisions of the Code of Civil Procedure, never has the specific point just above mentioned been brought into question. Now for the first time is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being required by the said code, the signature of the name of the person who, at the request of the testator or testatrix, writes the name of either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its observance in cases where the testator or testatrix is unable or does not know how to sign his or her name, expressly prescribed the practical method of complying with the provisions of the law on the subject. Among these decisions several were written by various justices of this court, some of whom are no longer on this bench, as they have ceased to hold such position.Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will, reads as follows:Wills, authentication of . — Where a will is not signed by a testator but by some other person in his presence and by his direction, such other person should affix the name of the testator thereto, and it is not sufficient that he sign his own name for and instead of the name of the testator.Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will, states:1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure; consequently where a testator is unable to sign his name, the person signing at his request must write at the bottom of the will the full name of the testator in the latter's presence, and by his express direction, and then sign his own name in full.In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements appear:Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to the will, and she requested another person to sign it for her. Held, That the will was not duly executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has stated that by reason of his inability to sign his name he requested one of the three witnesses present to do so, and that as a matter of fact, the said witness wrote the name and surname of the testator who, stating that the instrument executed by him contained his last will, put the sign of the cross between his said name and surname, all of which details are set forth in a note which the witnesses forthwith subscribed in the presence of the testator and of each other, said will may be probated.When the essential requisites of section 618 of the Code of Civil Procedure for the execution and validity of a will have been complied with, the fact that the witness who was requested to sign the name of the testator, omitted to state the words 'by request of .......... the testator,' when writing with his own hand the name and surname of the said testator, and the fact that said witness subscribed his name together with the other witnesses and not below the name of the testator, does not constitute a defect nor invalidate the said will.The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria Siason:5

The recital of the name of the testator as written below the will at his request serves as a signature by a third person.Moreover among the grounds given as a basis for this same decision, the following appears:In sustaining this form of signature, this court does not intend to qualify the decisions in Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but did not mean to exclude any other for substantially equivalent.In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:The testatrix was unable to sign her will with her own hand and requested another person to sign for her in her presence. This the latter did, first writing the name of the testatrix and signing his own name below:Held, That the signature of the testatrix so affixed is sufficient and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of another name before that of the testator when such name may be treated as nonexistent without affecting its validity.Among the conclusions contained in this last decision the following is found:Although the said words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither affirm nor deny, because a specific determination either way is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the will contains the name of the testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other witnesses then present. And this fully complies with the provisions of section 618 of the Act.It is true that in none of the decisions above quoted was the rule established that the person who, at the request of the testator or testatrix, signed the latter's or the former's name and surname to the will must affix his own signature; but it no less true that, in prescribing the method in which the provisions of the said section 618 to be complied with, it was stated that, in order that a will so executed might be admitted to probate, it was an indispensable requisite that the person requested to sign in place of the testator or testatrix, should write the latter's or the former's name and surname at the foot of the will in the presence and under the direction of either, as the case might be, and should afterwards sign the instrument with his own name and surname.The statement that the person who writes the name and surname of the testator or testatrix at the foot of the will should likewise affix his own signature thereto, name and surname, though it be considered to be neither a rule nor a requisite necessary to follow for the admission of the will to probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and integral part of the required conditions for the fulfillment of the provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating in the decisions hereinabove quoted that the name and surname of the said person should be affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail be understood to be contrary or opposed to the plain provisions thereof.In the preceding decision itself, it is recognized to be convenient and even prudent to require that the person requested to write the name of the testator or testatrix in the will also sign the instrument with his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of this country and for sake of an upright administration of justice, it should be maintained that such a signature must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it would serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause of controversy between the interested parties.The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a traditional conception of the laws which he has known since youth, relative to the form of execution of testaments, he believed it to be a vary natural and common sense requisite that the signature, with his own name and surname, of the person requested to write in the will the name and surname of the testator or testatrix should form a part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before referred to — a requisite deemed to be convenient and prudent in the majority opinion — formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The aforementioned different decisions were drawn up in the form in which they appear, and signed without dissent by all the justices of the court on various dates. None of them hesitated to sign the decisions, notwithstanding that it was expressly held therein that the person above mentioned should, besides writing in the will the name and surname of the testator or testatrix, also sign the said instrument with his own name and surname.Without being understood to criticize the provision contained in the said section 618 of the Code of Civil Procedure it will not be superfluous to mention that the system adopted in this section is the same as was in vogue under the former laws that governed in these Islands, with respect to witnesses who were not able or did not know how to sign their testimony given in criminal or civil cases, in which event any person at all might write the name and surname of the witness who was unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and, this done, it was considered that the instrument had been signed by the witness, though it is true that all these formalities were performed before the judge and the clerk or secretary of the court, which thereupon certified that such procedure was had in accordance with the law.The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who writes the name and surname of the testator or testatrix does so by the order and express direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the signature of a deposition, the witness, who could not or did not know how to sign, did not need to designate anyone to write the deponent's name and surname, and in practice the witness merely made a cross beside his name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among them those of the Civil Code, the person or witness requested by the testator or testatrix who was not able or did not know how to sign, authenticated the will by signing it with his own name and surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following provisions bearing on the subject:Should the testator declare that he does not know how, or is not able to sign, one of the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall be done if any one of the witnesses can not sign.So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the old laws with respect to the signing of a will by a testator or testatrix who did not know how or who could not sign, consisted in that the person appointed and requested by the testator or testatrix to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will and after the words "at the request of the testator," his own name, surname and paragraph.It is not at all strange that the attorneys of this country, imbued with and inspired by these legal provisions, which it may said, are traditional to them in the ideas they have formed of the existing laws in the matter of procedure in compliance therewith as regards the execution and signing of a will, should have believed that, after the name and surname of the testator or testatrix had been written at the foot of the will, the person who signed the instrument in the manner mentioned should likewise sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with his own name and surname, and since this suggestion is not opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition of this country, does not prejudice the testator nor those interested in an inheritance, and, on the contrary, constitutes another guarantee of the truth and authenticity of the letters with which the name and surname of the testator of testatrix are written, in accordance with his or her desire as expressed in the will.Even though the requisites referred to were not recognized in jurisprudence and were unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts and which in the present case has filed a vacancy left by the positive written law.The foregoing considerations, which perhaps have not the support of better premises, but in the opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled him to believe that the proposition should be enforced that the witness requested or invited by the testator or testatrix to write his or her name to the will, should also subscribed the instrument by signing thereto his own name and surname; and therefore, with the proper finding in this sense, and reversal of the judgment appealed from, that the court below should be ordered to proceed with the probate of the will of the decedent, Maria Salomon, in accordance with the law.

G.R. No. L-18979             June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO ICASIANO, petitioner-appellee, vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.Jose W. Diokno for petitioner-appellee.Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.REYES, J.B.L., J.:Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service of copies thereof upon the known heirs.On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as special administrator.1äwphï1.ñëtOn February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time.This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ., concur.Barrera and Dizon, JJ., took no part.

G.R. No. L-13431            November 12, 1919In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs.ANASTACIA ABANGAN, ET AL., opponents-appellants.Filemon Sotto for appellants.M. Jesus Cuenco for appellee. AVANCEÑA, J.:On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly admitted to probate.In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden.What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will.Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged.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 primordal 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 frustative of the testator's last will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

G.R. No. L-5826, Testate Estate of Cagro. Cagro v. Cagro et al., 92 Phil. 1032Republic of the PhilippinesSUPREME COURTManilaEN BANCApril 29, 1953G.R. No. L-5826Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs.PELAGIO CAGRO, ET AL., oppositors-appellants.Clouduallo Lucero and Vicente C. Santos for appellants.Marciano Chitongco and Zosimo B. Echanova for appellee.PARAS, C.J.:This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a memorandum of the facts attending the execution of the will' required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.Separate OpinionsBAUTISTA ANGELO, J., dissenting:I dissent. In my opinion the will in question has substantially complied with the formalities of the law and, therefore, should be admitted to probate . It appears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the attestation clause was already written thereon. Their testimony has not been contradicted. The only objection set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not appear immediately after the attestation clause.

This objection is too technical to be entertained. In the case of Abangan   vs . Abangan, (40 Phil., 476), this court said that when the testamentary dispositions "are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case),their signatures on the left margin of said sheet would be completely purposeless." In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law — which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions — has already been accomplished. We may say the same thing in connection with the will under consideration because while the three instrumental witnesses did not sign immediately by the majority that it may have been only added on a subsequent occasion and not at the uncontradicted testimony of said witnesses to the effect that such attestation clause was already written in the will when the same was signed.The following observation made by this court in the Abangan case is very fitting:The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it i 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 already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary useless and frustrative of the testator's last will, must be disregarded. (supra)We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect of preventing intestacy (article 788 and 791, New Civil Code)I am therefore of the opinion that the will in question should be admitted to probate.Feria, J., concurs.TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision erroneously sets down as a fact that the attestation clause was no signed when the witnesses signatures appear on the left margin and the real and only question is whether such signatures are legally sufficient.The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are not good. A letter is not any the less the writter's simply because it was signed, not at the conventional place but on the side or on top.Feria, J., concurs.

G.R. No. L-5971            February 27, 1911BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.NARCISA RIMANDO, defendant-appellant.Valerio Fontanilla and Andres Asprer for appellant.Anacleto Diaz for appellees.CARSON, J.:The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures to the instrument.A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain separating the inner from the outer one "at the moment of inscription of each signature."In the case just cited, on which the trial court relied, we held that:The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

G.R. No. 122880             April 12, 2006FELIX AZUELA, Petitioner, vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.D E C I S I O NTINGA, 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 merejurat, 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. IGSOLOSA NGALAN NG MAYKAPAL, AMEN:AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)PATUNAY NG MGA SAKSIAng kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.EUGENIA E. IGSOLO address: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.

QUIRINO AGRAVA address: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981LAMBERTO 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, 1981JUANITO ESTRERA address: City Court Compound,City of Manila Res. Cert. No. A574829Issued 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. BAUTISTADoc. No. 1232   ; NOTARIO PUBLIKOPage No. 86   ; Until Dec. 31, 1981Book No. 43   ; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner’s right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent’s signature did not appear on the second page of the will, and the will was not properly acknowledged. These twin arguments are among the central matters to this petition.After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments that the will was not properly executed and attested to in accordance with law.After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law.On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation of the will.With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will.8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial court and ordered the dismissal of the petition for probate.9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate.10

Hence, the present petition.Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible to what he termed as "the substantial compliance rule."11

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the defects of the will in question was the failure of the attestation clause to state the number of pages contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and undeserving of probate.We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the number of pages used in the will, however, the same was found in the last part of the body of the Will:"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations." (page 165-165, supra) (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 xWe 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 Section618 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 Appeals26 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 inSingson 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. Cagro36 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) Justices38 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 ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses.Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.WHEREFORE, the petition is DENIED. Costs against petitioner.SO ORDERED.

G.R. No. L-32213 November 26, 1973AGAPITA N. CRUZ, petitioner, vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.Paul G. Gorrez for petitioner.Mario D. Ortiz for respondent Manuel B. Lugay. ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence this appeal by certiorari which was given due course.The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:It is said that there are, practical reasons for upholding a will as against the purely technical reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator's signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledgingwitnesses. He the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads: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. [Emphasis supplied]To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.Cost against the appellee.Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

G.R. No. L-7179             June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, vs.DOÑA MATEA LEDESMA, oppositor-appellant.Fulgencio Vega and Felix D. Bacabac for appellant.Benjamin H. Tirot for appellee.REYES, J.B.L., J.:By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below, where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the codicil and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the vernacular, and that the deceased was a woman of wide business interests.The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.The decision admitting the will to probate is affirmed, with costs against appellant.Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ.,concur.

G.R. No. 157451 December 16, 2005LETICIA VALMONTE ORTEGA, Petitioner, vs.JOSEFINA C. VALMONTE, Respondent.D E C I S I O NPANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it should not be allowed. In the present case, petitioner has failed to discharge this burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the appellate tribunal that allowed the probate of the will.The CaseBefore the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant proceedings."4

The assailed Resolution denied petitioner’s Motion for Reconsideration.The FactsThe facts were summarized in the assailed Decision of the CA, as follows:"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that:‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament:1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in accordance with the rites and said Church and that a suitable monument to be erected and provided my by executrix (wife) to perpetuate my memory in the minds of my family and friends;2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties, which belongs to me as [co-owner]:a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share alike;b. 2-storey building standing on the above-described property, made of strong and mixed materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament, and it is my will that said executrix be exempt from filing a bond;IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City, Philippines.’"The allowance to probate of this will was opposed by Leticia on the grounds that:1. Petitioner failed to allege all assets of the testator, especially those found in the USA;2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law;3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with;4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance sate of senility;5. Will was executed under duress, or the influence of fear or threats;6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto;’and she also opposed the appointment as Executrix of Josefina alleging her want of understanding and integrity."At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly pension and stayed at the said Makati residence. There were times though when to shave off on expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attache case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will. To her estimate, the value of property both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too that the testator never suffered mental infirmity because despite his old age he went alone to the market which is two to three kilometers from their home cooked and cleaned the kitchen and sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly pension. Josefina also asserts that her husband was in good health and that he was hospitalized only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. After the testator instructed him on the terms and dispositions he wanted on the will, the notary public told them to come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the appointed date but the notary public was out of town so they were instructed by his wife to come back on August 9, 1983, and which they did. Before the testator and his witnesses signed the prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise explained that though it appears that the will was signed by the testator and his witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The notary public also testified that to his observation the testator was physically and mentally capable at the time he affixed his signature on the will."The attesting witnesses to the will corroborated the testimony of the notary public, and testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for the execution of the will but were asked to come back instead on August 9, 1983 because of the absence of the notary public; that the testator executed the will in question in their presence while he was of sound and disposing mind and that he was strong and in good health; that the contents of the will was explained by the notary public in the Ilocano and Tagalog dialect and that all of them as witnesses attested and signed the will in the presence of the testator and of each other. And that during the execution, the testator’s wife, Josefina was not with them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s family to live with him and they took care of him. During that time, the testator’s physical and mental condition showed deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry."Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the opposition to two grounds, namely:1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and2. Mental incapacity of the testator at the time of the execution of the will as he was then in an advanced state of senility"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of AppealsReversing the trial court, the appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will. Moreover, it held that the testator had testamentary capacity at the time of the execution of the will. It added that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make him a person of unsound mind.Hence, this Petition.7

IssuesPetitioner raises the following issues for our consideration:"I.Whether or not the findings of the probate court are entitled to great respect."II.Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or trickery, and that Placido Valmonte never intended that the instrument should be his last will and testament.

"III.Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the subject will."8

In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.This Court’s RulingThe Petition has no merit.Main Issue:Probate of a WillAt the outset, we stress that only questions of law may be raised in a Petition for Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during the trial may be examined and the factual matters resolved by this Court when, as in the instant case, the findings of fact of the appellate court differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as follows:"Article 839. The will shall be disallowed in any of the following cases:(1) If the formalities required by law have not been complied with;(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;(3) If it was executed through force or under duress, or the influence of fear, or threats;(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;(5) If the signature of the testator was procured by fraud;(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in its execution and challenging the testator’s state of mind at the time.Existence of Fraud in the

Execution of a WillPetitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator’s wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience"12 for an old man with a severe psychological condition to have willingly signed a last will and testament.We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution.14 The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented.It is a settled doctrine that the omission of some relatives does not affect the due execution of a will.16 That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, "because the law does not even require that a [notarial] will x x x be executed and acknowledged on the same occasion."18 More important, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another.19 Furthermore, the testator and the witnesses must acknowledge the will before a notary public.20 In any event, we agree with the CA that "the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:"Atty. Floro Sarmiento:Q You typed this document exhibit C, specifying the date June 15 when the testator and his witnesses were supposed to be in your office?A Yes sir.Q On June 15, 1983, did the testator and his witnesses come to your house?A They did as of agreement but unfortunately, I was out of town.x x x x x x x x xQ The document has been acknowledged on August 9, 1983 as per acknowledgement appearing therein. Was this the actual date when the document was acknowledged?A Yes sir.Q What about the date when the testator and the three witnesses affixed their respective signature on the first and second pages of exhibit C?A On that particular date when it was acknowledged, August 9, 1983.Q Why did you not make the necessary correction on the date appearing on the body of the document as well as the attestation clause?A Because I do not like anymore to make some alterations so I put it in my own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the acknowledgement it is dated August 9, 1983, will you look at this document and tell us this discrepancy in the date?A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we returned, Atty. Sarmiento was not there.Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?A We returned on the 9th of August and there we signed.Q This August 9, 1983 where you said it is there where you signed, who were your companions?A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)Felisa Gomez on cross-examination:Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?x x x x x x x x xA The reason why we went there three times is that, the first week of June was out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and testament. After that what they have talked what will be placed in the testament, what Atty. Sarmiento said was that he will go back on the 15th of June. When we returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the third time we went there on August 9 and that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-6)Josie Collado:Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?A Yes, Sir.Q For what purpose?A Our purpose is just to sign the will.Q Were you able to sign the will you mentioned?A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution.23Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.24

Capacity   to Make a Will In determining the capacity of the testator to make a will, the Civil Code gives the following guidelines:"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution."Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by disease, injury or other cause."It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act."Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary."The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval."According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying this test to the present case, we find that the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have stated earlier, the omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant.Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held thus:"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind."26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of Appeals areAFFIRMED. Costs against petitioner.SO ORDERED.

G.R. No. 15566           September 14, 1921EUTIQUIA AVERA, petitioner-appellee, vs.MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia,objectors-appellants.Dionisio Villanueva for appellants. Marcelino Lontok for appellee.STREET, J.:

In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses who testified — with details not necessary to be here specified — that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not introduced, nor was their absence accounted for by the proponent of the will.When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was about.After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly executed. He accordingly admitted the will to probate.From this judgment an appeal was taken in behalf of the persons contesting the will, and the only errors here assigned have reference to the two following points, namely, first, whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two; and, secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left margin.Upon the first point, while it is undoubtedly true that an uncontested will bay be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court.

In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith the probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses.Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses.It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well taken, and the first assignment of error must be declared not be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)There are at least two reason why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question relates a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been is duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late.Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses necessary to prove the will was in issue in the lower court.

The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in the will now before us; and upon this we are of the opinion that the will in question is valid. It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court.Still some details at times creep into legislative enactments which are so trivial it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page — rather than on the right margin — seems to be this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or no the right margin, provided they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was totally lacking in the signatures required to be written on its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing written matter.The instrument now before us contains the necessary signatures on every page, and the only point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the other.

The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate pages, were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably might have been filled in subsequently.The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice Avanceña, in a case where the signatures were placed at the bottom of the page and not in the margin, said:The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution o will and testaments and to guarantee 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.In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is so ordered, with costs against the appellants.Johnson, Araullo, Avanceña and Villamor, JJ., concur.

G.R. No. L-26808               March 28, 1969REV. FATHER LUCIO V. GARCIA, petitioner, vs.HON. CONRADO M. VASQUEZ, respondent.

Antonio Enrile Inton and Conrado B. Enriquez for petitioner. No appearance for respondent.FERNANDO, J.:  Petitioner in this certiorari proceeding was averse to paying the docket fees in the amount of P940.00 for the probate of a will of the decedent, Gliceria A. del Rosario. He was of the belief that no such fee should be collected as previously another alleged will of the same deceased was filed for probate by another party with the corresponding docket fee having been paid. He would assert, as set forth in the petition, "that after [such payment] by the original petitioner, Consuelo Gonzales, there is no more need for [him] to pay additional or separate docket fees for their petitions, since they all refer to the settlement of only one estate, the Estate of Gliceria A. del Rosario." 1

  Petitioner had to pay just the same, his belief that he would be thus exempted having failed to command the assent of respondent Judge, the Honorable Conrado M. Vasquez, who issued the following order of November 6, 1965: "'Oppositor, Father Lucio Garcia is hereby ordered to pay the corresponding fees of the filing of his petition for allowance of will and issuance of letters of administration with the will annexed, dated September 30, 1965 within fifteen (15) days from notice hereof, failure of which the said petition will be considered dismissed.'" 2Payment was made by him on December 2, 1965, coupled with a reservation that he would seek a definite ruling from us.  Hence this petition for certiorari filed on November 9, 1966, the sole question raised being the alleged error of the respondent Judge in ordering the payment of the aforesaid docket fee considering that previously, with reference to an alleged will of the same estate of the decedent in connection with the petition for probate filed, such a fee had been collected. It is petitioner's contention that the challenged order of respondent Judge amounted to a grave abuse of discretion correctible by certiorari.lawphi1.ñet  Respondent Judge did not even bother to answer the petition. It is understandable why. On its face, it is obviously without merit. A petition for probate of a will having been filed by petitioner, he could not escape the payment of the corresponding docket fee. The argument based on the allegation that there was such a previous payment in connection with another will of the same decedent sought to be probated does not carry the day. It is bereft of any persuasive force.

  Petitioner should have been aware that there is no escape from the payment of the corresponding docket fee, otherwise, the Court is not called upon to act on a complaint or petition. Nor does it suffice to vary the rule simply because there is only one decedent whose estate is thus to be disposed of by will that must first be probated. It is not farfetched or implausible that a decedent could have left various wills. Under such circumstances, there is nothing inherently objectionable in thus exacting the payment of a docket fee, every time a will is sought to be probated. Petitioner here could have sought the probate of the will presented by him in the same proceeding. He did not; he filed instead a separate action.  One last point. The Rules of Court require that for all clerical services in the allowance of will, the "fees payable out of the estate shall be collected in accordance with the value of the property involved ...." 3 The specific legal provision is thus clear and unmistakable. It is the clerical service in the allowance of the will that has to be paid for. The docket fees exist for that purpose and must be collected at the outset. There is no exception according to the above legal provision. It needs no interpretation. It must be applied in accordance with the specific language thus employed. 4 Respondent Judge acted in accordance with the clear tenor of the controlling legal norm. The alleged grievance of petitioner that there was a grave abuse of discretion does not merit any attention. As a matter of fact, on this point, respondent Judge had no discretion to abuse. The docket fees had to be paid. There is no escape for petitioner.  WHEREFORE, this petition for certiorari is denied, with costs against petitioner.Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano and Teehankee, JJ., concur.Barredo, J., reserves his voteG.R. No. L-26808               May 23, 1969REV. FATHER LUCIO V. GARCIA, petitioner, vs.HON. CONRADO M. VASQUEZ, respondent.R E S O L U T I O N*

FERNANDO, J.:

This is a motion for the reconsideration of our decision of March 28, 1969, filed by petitioner. In the opinion rendered in that case, we stated: "Petitioner should have been aware that there is no escape from the payment of the corresponding docket fee, otherwise, the Court is not called upon to act on a complaint or petition. Nor does it suffice to vary the rule simply because there is only one decedent whose estate is thus to be disposed of by will that must first be probated. It is not farfetched or implausible that a decedent could have left various wills. Under such circumstances, there is nothing inherently objectionable in thus exacting the payment of a docket fee, every time a will is sought to be probated. Petitioner here could have sought the probate of the will presented by him in the same proceeding. He did not; he filed instead a separate action."While not disputing the correctness of the above principle announced, petitioner, in this motion for reconsideration, would assert that he did not file a separate action "but instead elected to file the probate of the decedent's 1956 Will in the same Sp. Proc. 62618, then pending before the respondent Court." Petitioner's statement of fact is correct. Under the circumstances then, while the doctrine to the effect that a court of justice is not called upon to act on a complaint will petition in the absence of a payment of the corresponding docket fee every time a will is sought to be probated must be considered as subsisting, it finds no application to the present case, as petitioner did not file a separate action but instead sought to have the other will probated in the same special proceedings then pending before respondent Court. He is therefore entitled to have our decision reconsidered.WHEREFORE, the decision of March 28, 1969 is set aside and the petition for certiorari granted, with petitioner being thus entitled to the refund of the second docket fee of P940.00 paid under Receipt No. J-1459986 issued on December 2, 1965, and the order of respondent Court of November 6, 1965 ordering such payment of the second docket fee annulled. Without pronouncement as to costs.lawphi1.ñetReyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.Teehankee and Barredo, JJ., took no part.Concepcion, C.J., and Castro, J., are on leave.Footnotes*Editor's Note: See main decision in 27 SCRA 505.

G.R. No. 74695 September 14, 1993In 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. 5Petitioner, 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 quo concluded 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. 103554 May 28, 1993TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners, vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, respondents.Palma, Palma & Associates for petitioners.Emilio Lumontad, Jr. for private respondents. REGALADO, J.:Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the oppositors.All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in accordance with all the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin in the presence of the said testator and in the presence of each and all of us (emphasis supplied).To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law would have it that the testator signed the will "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 not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we feel should be made in aid of the rationale for our resolution of the controversy.1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute. 14 the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

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 should 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 witness, it shall be interpreted to them.In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of will is that they should be in writing and must have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the language used in the attestation clause likewise need not even be known to the attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in the presence of the testator and of one another.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; 23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the attestation clause. 25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.This objective is in accord with the modern tendency with respect to the formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing the respective signatures of the testator and the three attesting witnesses. The part of the will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the English language and is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility of reference:We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the Opposite of our respective names, we do hereby certify that the Testament was read by him and the testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page numbered correlatively in the letters on the upper part of each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces provided for his signature and on the left hand margin, in the presence of the said testator and in the presence of each and all of us.It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31

In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.It is contended by petitioners that the aforequoted attestation clause, in contravention of the express requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. We agree.What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words "he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:Art. 809. 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 not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.)While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:

. . . 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 theses 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. (Emphasis ours.)3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. 35 In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which we can read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by respondents since it presupposes that the defects in the attestation clause can be cured or supplied by the text of the will or a consideration of matters apparent therefrom which would provide the data not expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual requirements were actually complied within the execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the will itself.In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do directly.4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which manner of interpretation should be followed in resolving issues centering on compliance with the legal formalities required in the execution of wills. The formal requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs. Abangan, 36 where it was held 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 guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized that 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, hence 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. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of Neumark, 46 and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will.It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law.The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further provided in the same section that "The attestation shallstate the number of sheets or 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 three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict interpretation rule and established a trend toward an application of the liberal view.The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination towards a liberal construction, recommended the codification of the substantial compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code Commission:The present law provides for only one form of executing a will, and that is, in accordance with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of his property.However, in recent years the Supreme Court changed its attitude and has become more liberal in the interpretation of the formalities in the execution of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to the original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is recommended, which reads:"Art. 829. 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 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results."It may thus be stated that the rule, as it now stands, is that omissions 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.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.SO ORDERED.

G.R. No. 176943              October 17, 2008DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD, petitioners, vs.ZENAIDO ALUAD, respondent.D E C I S I O NCARPIO MORALES, J.:Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself.1

On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos"2(Deed of Donation) in favor of petitioners’ mother Maria3 covering all the six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided:That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective upon the death of the DONOR, but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect; Provided, however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,] encumber or even dispose of any or even all of the parcels of land herein donated.4 (Emphasis and underscoring supplied)On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde’s name.On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.5

Subsequently or on January 14, 1992, Matilde executed a last will and testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same year.7

On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint,8 for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages against respondent, alleging:That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x;That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.]9

To the complaint respondent alleged in his Answer.10

That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his possession as true owners thereof.11 (Underscoring supplied)Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence12 to which it annexed an Amended Complaint13 which cited the donation of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended Complaint.14

Respondent filed an Amended Answer15 contending, inter alia, that the Deed of Donation is forged and falsified and petitioners’ change of theory showed that "said document was not existing at the time they filed their complaint and was concocted by them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them";16 and that if ever said document does exist, the same was already revoked by Matilde   "when [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from Maria Aluad."17

The trial court, by Decision18 of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of Donation. Thus it disposed:WHEREFORE, in view of the foregoing, judgment is hereby rendered:1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;3. Ordering the defendant to pay the plaintiffs:a. Thirty thousand pesos (P30,000.00) as attorney’s fees;b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid;c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; andd. The costs of the suit.Defendant’s counterclaim is ordered dismissed for lack of merit.SO ORDERED.19

On petitioners’ motion, the trial court directed the issuance of a writ of execution pending appeal.20 Possession of the subject lots appears to have in fact been taken by petitioners.By Decision21 of August 10, 2006, the Court of Appeals reversed the trial court’s decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading: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 that 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.While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No. 674, as Matilde’s last will and testament had not yet been probated. Thus the Court of Appeals disposed:WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET ASIDE.A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant.Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney’s fees and litigation expenses.Costs against plaintiffs-appellees.SO ORDERED.22 (Emphasis in the original; underscoring supplied)Their Motion for Reconsideration23 having been denied,24 petitioners filed the present Petition for Review,25contending that the Court of Appeals erredIX X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS’ MOTHER IS IN FACT A DONATION MORTIS CAUSA.

IIX X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.IIIX X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.IVX X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF SUIT.26

As did the appellate court, the Court finds the donation to petitioners’ mother one of mortis causa, it having the following characteristics:(1) It conveys no title or ownership to the transferee   before   the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;(2) That before the death of the transferor, the transfer should be revocable by the transferor at will,ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and(3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis and underscoring supplied)The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners’ mother during her (Matilde’s) lifetime.28

The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated"29 means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than those established by law is an attribute of ownership.30 The phrase in the Deed of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the donee, thus:x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executed on 14 November 1981, as her husband – Crispin Aluad [–] had long been dead as early as 1975.31

The trial court, in holding that the donation was inter vivos, reasoned:x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that should the "DONEE" xxx die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of the subject donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor. Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective at the time when the donee died?32 (Underscoring supplied)A similar ratio in a case had been brushed aside by this Court, however, thus:

x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.Petitioners’ arguments are bereft of merit.33

x x x xx x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive characteristics of a donation   mortis causa   is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated to the donee or independently of, and not by reason of her death, she would not have expressed such proviso in the subject deeds.34 (Underscoring supplied)As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matilde’s acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for free patents for which OCTs were issued under her name."35

The donation being then mortis causa, the formalities of a will should have been observed36 but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.37

Further, the witnesses did not even sign the attestation clause38 the execution of which clause is a requirementseparate from the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will. So the Court has emphasized:

x x x 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[s] 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.x x x 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.39 (Emphasis and underscoring supplied)Furthermore, the witnesses did not acknowledge the will before the notary public,40 which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and the witnesses.More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page was not also followed.41

The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners’ mother. But even assuming arguendo that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of course to the qualification that her (Matilde’s) will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeedmortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since 1978.43

Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and issues not brought to the attention of the trial court cannot be raised for the first time on appeal.44 For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.45

WHEREFORE, the petition is DENIED.SO ORDERED.

Holographic Wills (Arts 810-814)

G.R. No. L-38338 January 28, 1985IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs.ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.Rafael Dinglasan, Jr. for heir M. Roxas.Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus. GUTIERREZ, JR., J.:This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.The antecedent facts which led to the filing of this petition are undisputed.After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of Administration had been granted to the petitioner, he delivered to the lower court a document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21, 1973.Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my win which I want to be respected although it is not written by a lawyer. ...The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and positively Identified her signature. They further testified that their deceased mother understood English, the language in which the holographic Will is written, and that the date "FEB./61 " was the date when said Will was executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with law, (b) it was executed through force, intimidation and/or under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could have intended the said Will to be her last Will and testament at the time of its execution.On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the holographic Will which he found to have been duly executed in accordance with law.Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the Civil Code. She contends that the law requires that the Will should contain the day, month and year of its execution and that this should be strictly complied with.On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the probate of the holographic Will on the ground that the word "dated" has generally been held to include the month, day, and year. The dispositive portion of the order reads:WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is hereby disallowed for not having been executed as required by the law. The order of August 24, 1973 is hereby set aside.The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which reads:ART. 810. 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.The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old Civil Code require the testator to state in his holographic Win the "year, month, and day of its execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the holographic Will should be dated. The petitioners submit that the liberal construction of the holographic Will should prevail.

Respondent Luz Henson on the other hand submits that the purported holographic Will is void for non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month, and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the required date includes the year, month, and day, and that if any of these is wanting, the holographic Will is invalid. The respondent further contends that the petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.We agree with the petitioner.This will not be the first time that this Court departs from a strict and literal application of the statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy —The underlying and fundamental objectives permeating the provisions of the law on wigs in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficien safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator.This objective is in accord with the modem tendency with respect to the formalities in the execution of wills. (Report of the Code Commission, p. 103)In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he emphasized that:xxx xxx xxx... The law has a tender regard for the will of the testator expressed in his last will and testament on the ground that any disposition made by the testator is better than that which the law can make. For this reason, intestate succession is nothing more than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,xxx xxx xxx... More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the wilt and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator.The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled 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. ...In particular, a complete date is required to provide against such contingencies as that of two competing Wills executed on the same day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wins and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to her. There is also no question as to its genuineness and due execution. All the children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.SO ORDERED.

G.R. Nos. 83843-44               April 5, 1990IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants, vs.COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-appellees.Benjamin C. Santos Law Offices for petitioners.Rodrigo V. Fontelera for private respondents.

PARAS, J.:The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is dated, as provided for in Article 8102 of the New Civil Code.The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro.Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.Petitioners now assign the following errors committed by respondent court, to wit:ITHE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; andIITHE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:ENGLISH INTERPRETATION OF THE WILL OF THELATE MELECIO LABRADOR WRITTEN IN ILOCANOBY ATTY. FIDENCIO L. FERNANDEZI — First PageThis is also where it appears in writing of the place which is assigned and shared or the partition in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time for me being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there shall be no differences among themselves, those among brothers and sisters, for it is I myself their father who am making the apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any cause of troubles or differences among the brothers and sisters.II — Second PageAnd this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father.Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they will be in good relations among themselves, brothers and sisters;And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall complain against the other, and against anyone of the brothers and sisters.III — THIRD PAGEAnd that referring to the other places of property, where the said property is located, the same being the fruits of our earnings of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefitted with all those property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied with, by all the brothers and sisters, the children of their two mothers — JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed with merit.The will has been dated in the hand of the testator himself in perfect compliance with Article 810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the holographic will, viz:And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo)The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. These requirements are present in the subject will.Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will 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."

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate.Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000.PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).SO ORDERED.

G.R. No. L-12190             August 30, 1958TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs.ILDEFONSO YAP, oppositor-appellee.Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.Arturo M. Tolentino for appellee.BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra, Sr. .............................................

5 Bahagi

Fausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................

2 Bahagi

Filomena Alto ..........................................................

1 Bahagi

Beatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including holographic wills.The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other.The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution.Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has indeed been written by the testator.Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity3 — the testator's handwriting — has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation?The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)Could Rule 77 be extended, by analogy, to holographic wills?Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen4 — an implied admission that such loss or theft renders it useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them.We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.

Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go undetected.If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.Judgment affirmed, with costs against petitioner.

G.R. No. L-58509 December 7, 1982IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, vs.AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.Luciano A. Joson for petitioner-appellant.Cesar Paralejo for oppositor-appellee. RELOVA, J.:This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court.As found by the Court of Appeals:... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court;(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977.On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that:(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said:... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills.MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors:I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.SO ORDERED.

G.R. No. L-14003             August 5, 1960FEDERICO AZAOLA, petitioner-appellant, vs.CESARIO SINGSON, oppositor-appellee.F. Lavides and L.B. Alcuaz for appellant.Vicente J. Cuna and P.S. Singson for appellee.REYES, J.B.L., J.:This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will.The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix."The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party.Article 811 of the Civil Code of the Philippines is to the following effect:ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that —in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel.En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados.El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar.And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory.Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary.In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs.

G.R. No. 123486           August 12, 1999EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs.EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.PARDO, J.:Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling:Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case.Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seño Vda. de Ramonal.2

The facts are as follows:On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on January 16, 1990.In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily.The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death.4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.1âwphi1.nêtRespondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal.On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde Seño Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7

On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available.Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure.The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit.Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seño Vda. de Ramonal.The holographic will which was written in Visayan, is translated in English as follows:InstructionAugust 30, 19781. My share at Cogon, Raminal Street, for Evangeline Calugay.(Sgd) Matilde Vda de RamonalAugust 30, 19782. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.(Sgd) Matilde Vda de RamonalAugust 30, 19783. My jewelry's shall be divided among:1. Eufemia Patigas

2. Josefina Salcedo3. Evangeline Calugay(Sgd) Matilde Vda de RamonalAugust 30, 19784. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay(Sgd) Matilde Vda de RamonalAugust 30, 19785. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.(Sgd) Matilde Vda de RamonalAugust 30, 19786. Bury me where my husband Justo is ever buried.(Sgd) Matilde Vda de RamonalAugust 30, 1978Gene and Manuel:Follow my instruction in order that I will rest peacefully.MamaMatilde Vda de RamonalOn October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that —in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate.Hence, this petition.The petitioners raise the following issues:(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix.(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seño Vda. de Ramonal.In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator.1âwphi1.nêtWe are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory.11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased.Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available.Matilde Ramonal Binanay, on the other hand, testified that:

Q.   And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time?A.   Collecting rentals.Q.   From where?A.   From the land rentals and commercial buildings at Pabayo-Gomez streets.12

x x x           x x x           x x xQ.   Who sometime accompany her?A.   I sometimes accompany her.Q.   In collecting rentals does she issue receipts?A.   Yes, sir.13

x x x           x x x           x x xQ.   Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them?A.   Yes, sir.Q.   Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?A.   Matilde vda. De Ramonal.Q.   Why do you say that is the signature of Matilde Vda. De Ramonal?A.   I am familiar with her signature.Q.   Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants?A.   Yes, sir.Q.   Why do you say so?A.   Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.Q.   How is this record of accounts made? How is this reflected?A.   In handwritten.14

x x x           x x x           x x xQ.   In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?

A.   Posting records.Q.   Aside from that?A.   Carrying letters.Q.   Letters of whom?A.   Matilde.Q.   To whom?A.   To her creditors.15

x x x           x x x           x x xQ.   You testified that at time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to?A.   Yes, sir.Q.   Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?A.   My Aunt.Q.   Why do you say this is the handwriting of your aunt?A.   Because I am familiar with her signature.16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:Q.   Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes?A.   Yes, sir.Q.   Who was in possession of that will?A.   I.Q.   Since when did you have the possession of the will?A.   It was in my mother's possession.Q.   So, it was not in your possession?A.   Sorry, yes.Q.   And when did you come into possession since as you said this was originally in the possession of your mother?

A.   1985.17

x x x           x x x           x x xQ.   Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession?A.   It was not given to me by my mother, I took that in the aparador when she died.Q.   After taking that document you kept it with you?A.   I presented it to the fiscal.Q.   For what purpose?A.   Just to seek advice.Q.   Advice of what?A.   About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seño Vda. de Ramonal.In the testimony of Ms. Binanay, the following were established:Q.   Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?A.   Yes, sir.Q.   She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct?A.   Yes, sir.19

x x x           x x x           x x xQ.   Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?A.   Yes, a little. The letter L is continuous.Q.   And also in Matilde the letter L is continued to letter D?A.   Yes, sir.Q.   Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.A.   Yes, sir.Q.   And there is a retracing in the word Vda.?

A.   Yes, sir.20

x x x           x x x           x x xQ.   Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?A.   Yes, sir the handwriting shows that she was very exhausted.Q.   You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted?A.   In writing.Q.   How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies?A.   That was I think. (sic).Q.   Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?A.   Yes, sir.Q.   You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that?A.   Yes, sir.21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that:Q.   You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal?A.   During my stay I used to go with her to the church, to market and then to her transactions.Q.   What else? What services that you rendered?A.   After my college days I assisted her in going to the bank, paying taxes and to her lawyer.Q.   What was your purpose of going to her lawyer?

A.   I used to be her personal driver.Q.   In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal?A.   Yes, sir.Q.   How come that you acquired familiarity?A.   Because I lived with her since birth.22

x x x           x x x           x x xQ.   Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this?A.   Yes, sir, that is her signature.Q.   Why do you say that is her signature?A.   I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document.The former lawyer of the deceased, Fiscal Waga, testified that:Q.   Do you know Matilde Vda de Ramonal?A.   Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity.Q.   Can you tell the name of the husband?A.   The late husband is Justo Ramonal.24

x x x           x x x           x x xQ.   Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children?A.   As far as I know they have no legitimate children.25

x x x           x x x           x x xQ.   You said after becoming a lawyer you practice your profession? Where?A.   Here in Cagayan de Oro City.Q.   Do you have services rendered with the deceased Matilde vda de Ramonal?A.   I assisted her in terminating the partition, of properties.

Q.   When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?A.   It is about the project partition to terminate the property, which was under the court before.26

x x x           x x x           x x xQ.   Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this?A.   That is the signature of Matilde Vda de Ramonal.Q.   Also in exhibit n-3, whose signature is this?A.   This one here that is the signature of Mrs. Matilde vda de Ramonal.27

x x x           x x x           x x xQ.   Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal?A.   I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can recall.28

x x x           x x x           x x xQ.   Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit "S"?A.   I am not familiar with the handwriting.Q.   This one, Matilde Vda de Ramonal, whose signature is this?A.   I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.Q.   Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this?A.   Well, that is similar to that signature appearing in the project of partition.Q.   Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that?A.   As I said, this signature also seems to be the signature of Matilde vda de Ramonal.Q.   Why do you say that?

A.   Because there is a similarity in the way it is being written.Q.   How about this signature in item no. 4, can you tell the court whose signature is this?A.   The same is true with the signature in item no. 4. It seems that they are similar.29

x x x           x x x           x x xQ.   Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?A.   Yes, it is similar to the project of partition.Q.   So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made?A.   That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not mandatory.In the case of Ajero vs. Court of Appeals,32 we said 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.However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will.Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seño vda. de Ramonal.1âwphi1.nêtNo costs.SO ORDERED.

G.R. No. 106720 September 15, 1994SPOUSES 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 xxxWhile 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 xxxAs 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.

G.R. No. L-40207 September 28, 1984ROSA K. KALAW, petitioner, vs.HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.Leandro H. Fernandez for petitioner.Antonio Quintos and Jose M. Yacat for respondents. 

MELENCIO-HERRERA, J.:On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.The holographic Will reads in full as follows:My Last will and TestamentIn the name of God, Amen.I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament.1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory.xxx xxx xxxThe holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading:Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature.ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder.After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel.The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C".WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby denied.SO ORDERED.From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation."From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not theoriginal unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature,The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l).Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del año en que fue extendido 3(Emphasis ours).WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.SO ORDERED.Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.Relova, J., took no part.

Rules on Conflict of Laws (Arts. 815-819)

G.R. No. L-20234      December 23, 1964PAULA DE LA CERNA, ET AL., petitioners, vs.MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.Philip M. Alo and Crispin M. Menchavez for petitioners.Nicolas Jumapao for respondents.REYES, J.B.L., J.:Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that "our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that:... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is valid."Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this court, the dismissal of their action for partition was correct.But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not be probated during the testator's lifetime.It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia.It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.