EN BANC

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

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs.LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

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

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

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

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

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.

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

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

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

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

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939.

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

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

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

likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

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

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

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

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

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

There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite

here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case.

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

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

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

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

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same

formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)

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

It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

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

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

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

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

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may

draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur.

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

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

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

This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

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

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

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

required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt

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

EN BANC

DECISION

February 11, 1918

G.R. No. L-11823

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-appellants,

vs.

MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-

appellants.

Guillermo Lualhati for appellants. Perfecto Gabriel for appellees.Araullo, J.:

On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First

Instance of the city of Manila for allowance as the will of Simeona F. Naval, who died

in said city two days previously, a document executed by her of February 13, 1915,

and in which he was appointed executor. The case was recorded as No. 13386 and,

after hearing the petition for allowance filed by said executor, it was denied on the

ground that said document was not duly executed by the deceased as her last will and

testament, inasmuch as she did not sign it in the presence of three witness and the two

witnesses did not sign it in the presence of each other. Thereafter the nieces and

legatees of the same deceased filed in the same court for allowance as her will,

another document executed by her on October 31, 1914, and, consequently, the case

was registered under another number, which was No. 13579. The petition for

allowance was opposed by Monica Naval, Rosa Naval, and Cristina Naval on the

ground that the will, the allowance of which is asked, could not be allowed, because

of the existence of another will of subsequent date, executed during her lifetime by the

same Simeona F. Naval, and because said will has been revoked by another executed

subsequently by her during her lifetime, and further, because sail will has not been

executed with the formalities required by existing laws. Trial having taken place, at

which evidence was adduced, the court on February 8, 1916, issued an order,

admitting said second document and ordering its allowance as the last will and

testament o said deceased. From said order the opponents appealed to this court and

transmitted to us the corresponding declarations. Tow of the opponents, that is, Rosa

and Cristina Naval, assigned, as errors committed by the court, the following:

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

that of February 13, 1915;

2. The act of the court in permitting the petitioner to institute and proceed with the

proceedings relative to the last case for the allowance of the will, No. 13579,

notwithstanding that proceedings had already been had in the other case No. 13386

and final judgment rendered therein; and

3. The act of the court in denying the motion for continuance of the trial on the

allowance of the will of October 31, 1914, which motion was presented for the sole

purpose of introducing evidence to show the falsity of the signature appearing in said

will and submitting said signature to the Bureau of Science for analysis.

The other opponent, Monica Naval, assigned, besides the first two errors already

mentioned, the finding of the court that the disallowance of the will of said deceased,

dated February 13, 1915, on the ground that is was not executed in such form that it

could transmit real and personal property, according to section 618 of the Code of Civil Procedure, also had the effect of annulling the revocatory clause in said will.

From the evidence it appears, as we have already stated, that the trial court declared

that the first document presented by the executor of the deceased, Simeona F. Naval,

as a will executed by her on February 13, 1915, and which was the subject-matter of

case No. 13386 of said court, could not be allowed, on the ground that it was not

executed with the requisites and formalities prescribed by law. Article 739 of the Civil

Code provides that a former will is by operation of law revoked by another valid

subsequent will, if the testator does not state in the later will his desire that the former

should subsist wholly or partly. In harmony with this provision of substantive law, we

find section 623 of the Code of Civil Procedure, which provides that no will shall

be revoked, except by implication of law, otherwise than by some will, codicil, or

other writing executed as provided in case of wills.

Therefore, according to the legal provisions, in order that the will of February 13,

1915, that is, the first document presented as the will of the deceased Simeona F.

Naval, could have the effect of revoking that which was presented afterwards by the

petitioners as executed by the same deceased on October 31, 1914, that is, on a date

previous to the execution of the first, it was necessary and indispensable that the later

will, that is, that first presented for allowance, should be perfect or valid, that it,

executed as provided by lay in case of wills.

It also appears from the record that the opponents themselves maintained that said

later will, that is, that of February 13, 1915, was not perfect, or executed as provided

by law in case of wills, and the Court of First Instance of Manila has so held in

disallowing said documents as the will of the deceased. So that it very evident that the

second will presented, that is, that of October 31, 1914, was not and could not have

been revoked by the first, and the court was not in error in so holding in the order

appealed from. We deem it unnecessary to add a single word mere or cite well-known

doctrines and opinions of jurists in support of what has already been stated.

As to the second error assigned by the opponents, we believe it sufficient to refer to

what the court below stated in the judgment appealed from. It is as follows:

The court finds no incongruency in the presentation of a prior will when another will

of subsequent date has been disallowed. Disregarding the fact that the petitioners in

this case were not those who presented the will in No. 13386, in which the petition

was presented by the same D. Perfecto Gabriel as executor, it is proper to take into

account that the object of a petition for allowance is to ask for an order declaring that

a will has been executed in accordance with the requisites and formalities required by

law. This is a question for the court to decide and is out of the control of the party who

presents the will. The allowance or disallowance of a will by a competent court

depends upon whether the evidence adduced at the trial shows or does not show that

the formalities required by law have been complied with, and this cannot be

determined in advance, as a general rule, by the person who presents the testament.

for he has not always concurred in or seen the execution of the will.

If, therefore, the personal who presents a will and asks that if be allowed does not

secure its allowance, and he has in his possession another will, or has information that

another exists, he does not contradict himself by asking for the allowance of the will

of earlier date merely because the later will was declared invalid by the proper court.

If in this case there is any who adopts a contradictory position, it is the respondent

himself, inasmuch as in case No. 13386 he alleged, as a ground for the disallowance

of the will then presented, that it was not executed in accordance with the law, and

now he maintains the contrary, for he claims that said will revoked that which is now

presented.

With respect to the third error, it is beyond doubt that the court did not commit it, for

it appears that when the examination of the witness, Cristina Samson, was finished

and the court told Attorney Lualhati, counsel for the respondents, to continue

adducing his evidence, he said he had no more proof, although he added that he would

ask the court to grant him permission to send the will of 1914 to the Bureau of

Science, which petition was objected to by the attorney for the proponents and denied

by the court. Immediately thereafter the attorney for the opponents asked for the

continuance of the trial, which was also denied by the court, after objection was made

by the proponents. The attorney for the opponents excepted to said ruling.

Therefore, the petition of said attorney for the remission of said will to the Bureau of

Science, in the terms in which it was made to the court, after ha had stated that he had

no more evidence to present, signified that he left it to the discretion of the court to

grant it or not. Furthermore, no exception was taken to the order to the order denying

this motion, and although the attorney for the opponents excepted to the order denying

the motion for continuance of the trial, such exception was completely useless and

ineffective for the purpose of alleging before this court that the trial court erred in that

respect, for said resolution, being one of those left to the discretion of the court in the

exercise of it functions, according to section 141 of the Code of Civil Procedure,

it could not be the subject of an exception, unless the court, in denying said motion,

abused its discretional power and thereby prejudiced the essential rights of the

respondents, which is not the case here.

The error which, in addition to the first two already mentioned, has been assigned by

the opponent and appellant, Monica Naval, and refers, according to her, to the court's

action in declaring that the disallowance of the will of the deceased Simeona F. Naval,

dated February 13, 1915, for the reason that it was not executed in such manner and

from that it could transmit real and personal property, according to the provisions of

section 618 of the Code of Civil Procedure, also had the effect of annulling the

revocatory clause of said will.

First of all, it is not true that the court made such statement in the terms given in said

assignment of error, that is, it is not true that the court declared that, because said will

was not executed in the form required by law in order that it may transmit real and

personal property, according to the provisions of section 618, the disallowance of said

will also had the effect of annulling the revocatory clause therein contained. In the

order appealed from there is no declaration or conclusion made in these terms. The

court did not say that the annulment of the revocatory clause in said will was the

effect or consequence of the fact that it was not allowed on the ground that it was not

executed in the form required by law in order that it may transmit real and personal

property. Referring to the construction, given by the respondent to sections 618 and

623 of the Code of Civil Procedure, to the effect that a subsequent will may

revoke a previous will, although the later will has not been allowed by the competent

court, it being sufficient that the intention of the testator to revoke the previous will

should be clearly expressed, and that, while the requisite of allowance is necessary in

order that it may transmit property from one person to another, it is not necessary in

order that it might procedure other effects, for example, the effect of a revocatory

clause, or a clause of aknowledgment of a child, - what the court declared, we repeat,

was that although the revocation of a will should have been effected, not by means of

another will or codicil, but by mans of a document, as authorized by said section 623,

which document should have the requisites and conditions fixed in section 618, the

presentation of the document to the court was necessary in order that the latter might

allow it, by declaring that it was executed with the formalities required by law for the

execution of a will, and finally concluding that, just as to, is to be proved that the

requisites of section 618 have been complied with in order that a will may be of value

through its allowance, so without such allowance the revocatory clause like the other

provisions of the will, has no value or effect except to show extraneous matters, as, for

example, the acknowledgment of natural children, of some debt or obligation. In such

case, the document could produce effect, but not as will, but simply as a written

admission made by the person executing it. And It is beyond doubt that the revocatory

clause contained in a document, like the present, which contains provisions proper of

a will, as those relating to legacies and distribution of the properties of the testator

after his death as well as the appointment of executors, is not matter extraneous to the

will, but merely a part thereof, intimately connected with it as well as with the will or

wills, the revocation of which is declared in said clause; in short, the desire of the

testator declared in the revocatory clause is related to the desire of the same testator

expressed in the provisions of the testament in which said clause is found and to that

which he might have expressed in the testaments which he may have previously

executed. There is such relation between the revocatory clause and the will which

contains it, that if the will does not produce legal effects, because it has not been

executed in accordance with the provisions of the law, neither would the revocatory

clause therein produce legal effects. And if, in the present case, the so-called will of

the deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by

her as her last will and testament, ad declared by the court in its decision of November

19, 1915, in case No. 13386, for which reason its allowance was denied, neither may

it be maintained that the revocatory clause contained in said will is the expression of

the last will of said deceased. The disallowance of the ill, therefore, produced the

effect of annulling the revocatory clause, not exactly because said will was not

executed in such from that it could transmit real and personal property, as inaccurately

alleged by the appellant, Monica Naval, to be the court's finding, upon which said

assignment of error is based, but because it was proved that said will was not executed

or signed with the formalities and requisites required by section 618 of the Code of Civil Procedure, a cause which also produces the nullity of the same will,

according to section 634 of said law; and of course what is invalid in law can produce

no effect whatever.

If the instrument propounded as a revocation be in form a will, it must be perfect as

such, and be subscribed and attested as is required by the statute. An instrument

intended to be a will, but filing of its effect as such on account of some imperfection

in its structure or for want of due execution, cannot be set up for the purpose of

revoking a former will. (40 Cyc., p. 1177, and cases cited therein.)

A subsequent will containing a clause revoking an earlier will must, as a general rule,

be admitted to probate before the clause of revocation can have any effect, and the

same kind, quality, and method of proof is required for the establishment of the

subsequent will as was required for the establishment of the former will. (40 Cyc., p.

1178, and cases cited therein.)

But admitting that the will said to have been executed by the deceased Simeona F.

Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for

the reason that it has not been executed, according to the provisions of said section

618 of the Code of Civil Procedure, should be considered as executed by her in

order to express her desire, appearing in one of its clauses, to revoke and annul any

previous will of hers, as stated in clause 13, this being the argument adduced by the

appellant, Monica naval, in support of said assignment of error - neither could it be

maintained that, the allowance of said will having been denied by the court on

November 11, 1915, said revocatory clause subsists and the intention expressed by the

testratrix therein is valid and legally effective, for the simple reason that, in order that

a will may be revoked by a document, it is necessary, according to the conclusive

provisions of section 623 of said procedural law, that such documents be executed

according to the provisions relating to will in section 618, and the will in question, or,

according to the respondent, the so-called document, was not executed according to

the provisions of said section, according to the express finding of the trial court in its

order of November 11, 1915, acquiesced in by the opponent herself, and which is now

final and executory. Therefore, the disallowance of said will and the declaration that it

was not executed according to the provisions of law as to wills, produced the effect of

annulling said revocatory clause.

In support of the argument advanced in her brief said appellant, Monica Naval, cites

the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis

(114 Mass., 510, 512)m which, according to the appellant herself, was in the

following terms:

If it be shown that a later will was duly executed and attested, containing a clause

expressly revoking former will nothing else appearing as to its contents, it is

nevertheless good as a revocation, but it can only be made available by setting it up in

opposition to the probate of the earlier will.

In the decision of said case the finding referred to be by the appellant appears not to

have been made by the Supreme Court of Massachusetts.

The syllabus of said decision says:

When a will revoking a former will is in existence, it must be established in the

Probate Court; but when it has been lost or destroyed, and its contents cannot be

sufficiently proved to admit it to probate, it may nevertheless be availed of as a

revocation in opposition to the probate of the will revoked by it.:

And in the body of the decision there is a declaration, to which the appellant must

have desired to refer in her brief, which declaration says:

If it can be proved that a later will was duly executed, attested and subscribed, and

that it contained a clause expressly revoking all former wills, but evidence of the rest

of its contents cannot be obtained, it is nevertheless a good revocation; and it can be

made available only by allowing it to be set up in opposition to the probate of the

earlier will,. . .

The facts of the case in which this decision was rendered are different from the facts

of the case at bar. That was a case concerning a will filed by one of the children of the

testatrix, Mary Wallis, as her last will, to the allowance of which another son objected,

alleging that said will had been revoked by another executed by the same deceased

subsequent to the will that was filed, and that it had been fraudulently destroyed or

taken by his brother, the proponent and his wife, or by one of them, in order to deprive

him of the rights conferred upon him by said will. Therefore, the will said to have

been subsequently executed by the testatrix and in which, according to the oppositor,

the clause revocatory of the former will appeared, was not presented by said

oppositor, while the previous will was, in the contrary, filed for allowance by the son

of the testratrix, who appeared to be favored therein, said oppositor having alleged

that the subsequent will, that is, that containing the revocatory clause, had been

drawn, subscribed and executed in accordance with the provisions of the law, a fact

which he was ready to prove just as he was ready to prove that it had been destroyed

or suppressed by the proponent, his brother and his wife, or one of them. In the case at

bar, the subsequent will containing the revocatory clause of the previous will executed

by the deceased Simeona F. Naval was presented to the court for allowance and it was

disallowed - a fact which gave opportunity to the legatees of said deceased to present

a previous will executed by her on October 31, 1914, and said two wills having been

successively presented, evidence as to them was also successively adduced for their

allowance by the court.

Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs.

Wallis (supra), to the effect that a subsequent will containing a revocatory clause of

previous wills, constitutes a valid revocation and may be used in objecting to the

allowance of the previous will, even when it is not possible to obtain proof of the

remainder of the contents of said subsequent will, refers to the case in which the latter

had been taken away, destroyed or suppressed, and it was impossible to present it for

allowance, but requires for that purpose that it be proved that said subsequent will has

been executed, attested, and subscribed in due form and that it contained, furthermore,

that revocatory clause. This is what said declaration and, in relation thereto, also what

the syllabus of the decision thereof clearly says. The court, through Chief Justice

Gray, in giving its opinion, thus began by saying:

By our law, no will can be revoked by any subsequent instrument, other than a "will,

codicil or writing, signed, attested and subscribed in the manner provided for making

a will." And when an instrument of revocation is in existence and capable of being

propounded for probate, its validity should be tried by a direct proceeding instituted

for the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)

It results, therefore, that while perfect parity does not exist between the case decided

by the Supreme Court of Massachusetts, to which the appellant Monica Naval refers,

and that which is not before us, it is wholly unquestionable that, whether the case

deals with a subsequent will revocatory of a previous will, which may possibly be

presented to a probate court for allowance, or of a subsequent will, also revocatory of

a previous will, which could not be presented for allowance, because it has been taken

or hidding, or mislaid - in order that such will may constitute a valid revocation and

be utilized in the second case, although the remaining provisions may not be proven,

in opposition to the allowance of the previous will, it is necessary to prove that it was

executed, attested, and subscribed in due form, and, of course, also that it contained a

clause expressly revoking the previous will, or, what is the same thing, that said

subsequent will has been executed according to the provisions relating to wills, as

expressed in section 623 of the procedural law in force. There can be no doubt

whatever that this applies when the revocation had been made to appear in a writing

or document susceptible of presentation for allowance, like the so-called will of the

deceased Simeona F. Naval, dated February 13, 1915, and considered by said

respondent and appellant as a mere document of revocation, for, as already seen in

said decision invoked by her, the requisite as to signing, attesting, and subscribing in

the form, required by law for the execution of wills in order that it may revoke a

previous will, is also required in a will as well as in a codicil, or in a writing, and in

referring to a document of revocation, it is also expressed that its validity should be

proved in a direct proceeding, instituted for the purpose in a probate court. In the case

at bar, the document, executed by the deceased, Simeona F. Naval, as her last will and

testament, dated February 13, 1915, has been presented for allowance; it validity has

been proved by means of said procedure in the Court of Probate of Manila, and that

court denied its allowance, on the ground that the document in question had not been

duly executed by the deceased, as her last will and testament, because she did not sign

in the presence of three witnesses, and two of these witnesses did not sign in the

presence of each other, or what is the same thing, that said document has not be

attested and subscribed in the manner established by law for the execution of will, or,

in other words, as provided by law in case of wills, as stated by section 623 of said

procedural law, and this resolution was acquiesced in, as already stated, by the

respondents in this case, and is, therefore, final and executory.

In conclusions, the doctrine laid down in the decision of the Supreme Court of

Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the

provision of said section 623 of our procedural law and article 739 of the Civil Code,

and the will executed by the deceased Simeona F. Naval on October 31, 1914, not

having been revoked, according to these provisions, by the will presented and alleged

as executed by the same deceased subsequently on February 13, 1915, the allowance

of which was denied by the Court of First Instance of Manila, the court below was not

in error in ordering the allowance of said will, that is, of that of October 31, 1914, as

the last will and testament of said deceased.

Wherefore, the order appealed from is affirmed, with the costs of this instance against

the appellants. So ordered.

Arellano, C.J., Torres, Carson, Streets and Malcolm, JJ., concur.

EN BANC

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

Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs.CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.Jose Rivera for appellees.

JOHNSON, J.:

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

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

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

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

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

With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same

presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

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

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

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

EN BANC

G.R. No. L-3378             August 22, 1951

TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO TRILLANA, administrator-appellee, vs.CONSORCIA P. CRISOSTOMO, ET ALS, petitioners-appellants.

Francisco R. Capistrano and Jesus T. Quiambao for petitioners and appellants.Jose G. Generoso and Jose B. Bautista for administrator and appellee.

FERIA, J.:

This is an appeal from an order of the Court of First Instance of Bulacan denying the appellants' petition for relief from the judgment of the said court allowing the will of October 19, 1948, executed by the deceased Damasa Crisostomo.

The appellants, in support of their sole assignment that the lower court erred in denying their petition for relief from the judgment of January 5, 1949, admitting to probate the will of October 19, 1948, submits to this Court three propositions, to wit: (a) "The judgment of January 5 was obtained through fraud," (b) "The lower court failed to perform its legal duty to set date for proving the will of August 16, 1948;" and (c) "The failure to set aside a date for proving the will of August 16 with the will of October 19 was entirely due to the lower court's fault or negligence."

In support of their proposition (a), attorneys for the appellant allege that the fraud in obtaining the judgment of January 5 consisted in that the proponents of the will of October 19 did not cause personal notice of the hearing to be made upon the legal heirs of the decedent, contrary to the requirement of Rule 77, sec. 4 of the Rules of Court. We can not consider now for the first time in this appeal the question whether the lower court (not the proponents) complied with the requirement of said sec. 4 of Rule 77 of the Rules of Court, for that question has not been raised by the appellants in the court below, either in their original petition for relief of May 12, 1949 (pp. 2-8, Record on Appeal), or in their motion for reconsideration dated August 27, 1949, of the order denying their petition for relief (pp. 67-71). And there being no evidence to the contrary, the legal presumption is that the court which probated the will of October, 19, 1948., complied with its duty and acted in lawful exercise of its jurisdiction in probating said will (Sec. 69 (m) (n), Rule 123 of the Rules of Court). Besides, appellee's attorney, in the statement of facts in to the appellants' petition for relief, stated that "This Honorable Court set its hearing [of the petition for allowance of the will of October 19, 1948] on December 2, 1948. Copy of this order was published in "The Star Reporter", newspaper of general circulation in Bulacan on November 5, 12 and 19 respectively, and the corresponding notices served by the office of the Clerk of Court, in accordance with law" (pp. 25 26, Record on Appeal). And the attorneys for the petitioners-appellant had not denied said statement.

The petitioners-appellants having failed to show that the judgment of the lower court of January 5, 1948, probating the will of testatrix of October 19, was obtained through fraud, the lower court did not commit any error in denying the appellant's petition for relief under sec. 2, Rule 38 of the Rules of Court, and therefore it is not necessary for us to discuss and pass upon the other propositions of the appellant.

Where a will is duly probated after publication pursuant to 630 of the Code of Civil Procedure, the order admitting the will is, in the absence of fraud, effective against an persons. The fact that an heir or other interested party lives so far away as to make it impossible for such party to be present at the date appointed for the, probate of the will does not render the order of probate void for lack of due process. (In re Estate of Johnson, 39 Phil. 156)

Besides, even assuming without deciding, that under sec. 3 of Rule 77, the court shall set aside a date for proving a will even without petition when it is delivered to the, court having jurisdiction, as contended by the appellants, the lower court was right in not setting a date for proving the will of August 16, 1948, because this will was expressly and absolutely revoked by the will of October 19, 1948, executed by the same executrix or deceased, which was filed for allowance on November 1, 1948, with the same Court of First Instance of Bulacan. According to the attorneys for the appellant, the will dated August 16, 1948, was sent together with a writing called "Manifestation" by registered mail on October 30, 1948, from Manila to the Court of First Instance of Bulacan, by Attorney Mr. Tomas V. Barnes, and said will must have been received by the Clerk of Said Court on or after November 1, 1948, the date when the subsequent will of October 19, was filed for probate. It stands to reason that if two wills are presented for allowance but one of them revoked will cannot be included in the probate of the latter subsequent will, because it would be a waste of time to allow the revoked will if the subsequent revoking will is allowed. The revoked will may be probated and allowed only if the subsequent revoking will is disallowed. (11. McAra vs .MacCay, L. R. 23 Ir., 138;

Pepper vs. Pepper, Ir. R. 5 Eq., 85; Matter of Palmer, 58 L.J. P.D. and Adm., 44; Matter of Stephens, 22 L.T. Rep., N.S. 727.) [68 C.J. 886]

Besides, the appellants in the present case, who merely allege in their petition for relief that they are "nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without specifying the degree of relationship they had the latter, do not pretend that it if the will October 19, 1949, be disallowed, they will inherit the estate left by the testatrix. They contend that said will should be probated jointly or together with the will of August 16, 1948, and the latter be allowed instead of the former. As in her will of October 19, 1949, as well in that of August 16, 1948, the testatrix is leaving all her properties as legacies to other persons, the appellants have no interest in the probate of said wills, and they can not appeal from the judgment which allowed one of them instead of the other.

Appellants argue that they are in interested parties and therefore may appeal in the present case, because in the event the will of October 19 is disallowed and in its that of August 16 is allowed, and the legacies in the latter are declared invalid or the legatees incapable to inherit, the legacies will go to appellants. This argument has no merit. In civil actions and special proceedings, unless otherwise provided by law, the interest in order that a person may be a party on appeal must be material and direct, so that he will be materially and directly benefited or injured by the court's order, decree or judgment: and not indirect or contingent (Espinosa vs. Barrios, 40 Off. Gaz., [8 Supp. No. 12]. p. 145). The interest claimed by the appellants is purely contingent or dependent upon several uncertain and future events to (1) The disallowance of the will of October 19, 1948 (2)The allowance of the will of August 16, 1948, and (3) invalidation of certain legacies left in said will of August 16, 1948.

In view of all the foregoing, the order appealed from is affirmed with costs against the appellants. So ordered.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.