Wills Full text

7/27/2019 Wills Full text

1/70

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-4067 November 29, 1951

In 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 Mercadodated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestationclause:

We, the undersigned, by these presents to declare that the foregoing testament of AnteroMercado was signed by himself and also by us below his name and of this attestation clauseand that of the left margin of the three pages thereof. Page three the continuation of thisattestation clause; this will is written in Ilocano dialect which is spoken and understood by thetestator, and it bears the corresponding number in letter which compose of three pages andall them were signed in the presence of the testator and witnesses, and the witnesses in thepresence 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 AnteroMercado, followed below by "A reugo del testator" and the name of Florentino Javier. AnteroMercado 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 attestationclause failed (1) to certify that the will was signed on all the left margins of the three pages and at theend of the will by Atty. Florentino Javier at the express request of the testator in the presence of thetestator 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 hisname 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 thetestator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercadocaused Atty. Florentino Javier to write the testator's name under his express direction, as required bysection 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of


2/70

certiorari from the decision of the Court of Appeals) argues, however, that there is no need for suchrecital because the cross written by the testator after his name is a sufficient signature and thesignature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much asignature as a thumbmark, the latter having been held sufficient by this Court in the cases of DeGala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62Phil., 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 Mercadoor even one of the ways by which he signed his name. After mature reflection, we are not preparedto liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot anddoes not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in theattestation clause as to the signing of the will by the testator in the presence of the witnesses, and bythe 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.


3/70

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

DECISION

September 1, 1914

G.R. No. 6845

YAP TUA , petitioner-appellee,

vs.

YAP CA KUAN and YAP CA LLU , objectors-appellants.

Chicote and Miranda for appellants.

OBrien and DeWitt for appellee.JOHNSON, J. :

It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing

the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking

that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of

Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in the

city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto was

the alleged will of the deceased. It appears that the will was signed by the deceased, as well as

Anselmo Zacarias, Severo Tabora, and Timoteo Paez.

Said petition, after due notice was given, was brought on for hearing on the 18th day of September,

1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga

Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had

executed a last will and testament; that he was present at the time of the execution of the same; that

he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said

will as witnesses and that they had signed the will in the presence of the deceased.

Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa

Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of

Manila; that before her death she had executed a last will and testament; that he was present at the

time said last will was executed; that there were also present Timoteo Paez and Severo Tabora and a

person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of the

witnesses; that he had seen her sign the will with his own eyes; that the witnesses had signed the will

in the presence of the said Tomasa Elizaga Yap Caong and in the presence of each other; that the said

Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the possession

of her faculties; that there were no threats or intimidation used to induce her to sign the will; that she

signed it voluntarily.


4/70

No further witnesses were called and there was no further opposition presented to the legalization of

the said will.

After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of

September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed

and admitted to probate. The will was attached to the record and marked Exhibit A. The court furtherordered that one Yap Tua be appointed as executor of the will, upon the giving of a bond, the amount

of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910,

when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were

interested in the matters of the said will and desired to intervene and asked that a guardian ad litem

be appointed to represent them in the cause.

On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad l item of said parties.

Gabriel La O accepted said appointment, took the oath of office and entered upon the performance of

his duties as guardian ad l item of said parties. On the 2d day of March, 1910, the said Gabriel La O

appeared in court and presented a motion in which he alleged, in substance:

First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court

on the 29th day of September, 1909, was null, for the following reasons:

(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then

mentally capacitated to execute the same, due to her sickness.

(c) Because her signature to the will had been obtained through fraud and illegal influence upon the

part of persons who were to receive a benefit from the same, and because the said Tomasa Elizaga

Yap Caong had no intention of executing the same.

Second. That before the execution of the said will, which they alleged to be null, the said Tomasa

Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th

day of August, 1909.

Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been

negligent in presenting their opposition to the legalization of the will, said negligence was excusable,

on account of their age.

Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of

September, 1909, and to grant to said minors an opportunity to present new proof relating to the due

execution of said will. Said petition was based upon the provisions of section 113 of the Code of

Procedure in Civil Actions.


5/70

While it is not clear from the record, apparently the said minors in their petition for a new trial,

attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and

the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.

Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A.

S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the18th day of March, 1910, and directed that notice should be given to the petitioners of said rehearing

and to all other persons interested in the will. At the rehearing a number of witnesses were examined.

It will be remembered that one of the grounds upon which the new trial was requested was that the

deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909;

that in support of that allegation, the protestants, during the rehearing, presented a witness called

Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon being

shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A, in his

judgment were written by two different hands, though the given name is the same as that upon

Exhibit 1 (the will of August 6, 1909), because he found in the name Tomasa on Exhibit A asimilarity in the tracing to the Tomasa in Exhibit 1; that comparing the surname on Exhibit A with

the surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished and

different by the tracing and by the direction of the letters in the said two exhibits; that from his

experience and observation he believed that the name Tomasa and Yap Caong, appearing in the

signature on Exhibit A were written by different person.

Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that

while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell

exactly when that was, except that he had concluded his course in the year 1882; that since that time

he had been a telegraph operator for seventeen years and that he had acted as an expert in hand-writing in the courts in the provinces.

Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of

the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance

with her request and under her directions; that she had signed it; that the same had been signed by

three witnesses in her presence and in the presence of each other; that the will was written in her

house; that she was sick and was lying in her bed, but that she sat up to sign the will; that she signed

the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he

knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as awitness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased, Tomasa

Elizaga Yap Caong, became familiar with the contents of the will because she signed it before he (the

witness) did; that he did not know whether anybody there told her to sign the will or not; that he

signed two bills; that he did not know La O; that he did not believe that Tomasa had signed the will

(Exhibit A) before he arrived at the house; that he was not sure that he had seen Tomasa Elizaga Yap

Caong sign Exhibit A because there were many people and there was a screen at the door and he


6/70

could not see; that he was called a a witness to sign the second will and was told by the people there

that it was the same as the first; that the will (Exhibit A) was on a table, far from the patient, in the

house but outside the room where the patient was; that the will was signed by Paez and himself; that

Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or not;

that he was not sure whether Tomasa Elizaga Yap Caong could see the table on which the will was

written at the time it was signed or not; that there were many people in the house; that he

remembered the names of Pedro and Lorenzo; that he could not remember the names of any others;

that the will remained on the table after he signed it; that after he signed the will he went to the room

where Tomasa was lying; that the will was left on the table outside; that Tomasa was very ill; that he

heard the people asking Tomasa to sign the will after he was (the witness) had signed it; that he saw

Paez sign the will, that he could not remember whether Anselmo Zacarias had signed the will, because

immediately after he and Paez signed it, he left because he was hungry; that the place where the

table was located was in the same house, on the floor, about two steps down from the floor on which

Tomasa was.

Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa

Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A).

Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had treated

her in the month of August; that he visited her first on the 8th day of August; that he visited her

again on the 9th and 10th days of August; that on the first visit he found the sick woman completely

weak very weak from her sickness, in the third stage of tuberculosis; that she was lying in bed; that

on the first visit he found her with but little sense, the second day also, and on the third day she had

lost all her intelligence; that she died on the 11th of August; tat he was requested to issue the death

certificate; that when he asked her (Tomasa) whether she was feeling any pain or anything of that

kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed, by the

stage of uraemia from which she was suffering.

Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during

the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that

Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except the last

part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the

uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as to

the terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that

the will was written in the dining room of the residence of the deceased; that Tomasa was in another

room different from that in which the will was written; that the will was not written in the presence of

Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that the other

witnesses signed the will in the same room that when he went into the room where the sick woman

was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the

bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was lying

stretched out on the bed and two women, who were taking care of her, helped her to sit up,

supporting her by lacing their hands at her back; that when she started to write her name, he

withdrew from the bed on account of the best inside the room; when he came back again to the sick


7/70

bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the

will because he withdrew from the room; that he did not know whether Tomasa had been informed of

the contents of the will or not; he supposed she must have read it because Lorenzo turned the will

over to her; that when Lorenzo asked her to sign the will, he did not know what she said he could

not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he

believed that Tomasa died the next day after the will had been signed; that the other two witnesses,

Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman; that he saw

them sign the will and that they saw him sign it; that he was not sure whether the testatrix could

have seen them at the time they signed the will or not; that there was a screen before the bed; that

he did not think that Lorenzo had been giving instructions as to the contents of the will; that about ten

or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she started to sign

it; that the pen with which she signed the will as given to her and she held it.

Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and

that she was dead; that she had made two wills; that the first one was written by La O and the second

by Zacarias; that he was present at the time Zacarias wrote the second one; that he was present

when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that the

second will was exactly like the first; that Tomasa said she could not sign it.

On cross examination he testified that there was a lot of visitors there; that Zacarias was not there;

that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the

first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is

nothing in their testimony, however, which in our opinion is important.

In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she

knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during the

last week of her illness; that Tomasa had made two wills; that she was present when the second one

was executed; that a lawyer had drawn the will in the dining room and after it had been drawn and

everything finished , it was taken to where Doa Tomasa was, for her signature; that it was taken to

her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that there were

many other people present also; that she did not see Timoteo Paez there; that she saw Severo

Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask Tomasa to sign

the will; that she did not hear Lorenzo say to Tomasa that the second will was the same sa the first;

that Tomasa asked her to help her to sit up and to put a pillow to her back when Zacarias gave her

some paper or document and asked her to sign it; that she saw Tomasa take hold of the pen and try

to sign it but she did not see the place she signed the document, for the reason that she left the

room; that she saw Tomasa sign the document but did not see on what place on the document she

signed; and that a notary public came the next morning; that Tomasa was able to move about in the

bed; that she had seen Tomasa in the act of starting to write her signature when she told her to get

her some water.


8/70

Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap

Caong and knew that she had made a will; that he saw the will at the time it was written; that he saw

Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo

had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table near the

bed; that the table was outside the curtain or screen and near the entrance to the room where

Tomasa was lying.

Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that

Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that

Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa; that

Tomasa, from where she was lying in the bed, could seethe table where the witnesses had signed the

will.

During the rehearing certain other witnesses were also examined; in our opinion, however, it is

necessary to quote from them for the reason that their testimony in no way affects the preponderance

of proof above quoted.

At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached

the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to

the record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap Caong

and admitted it to probate and ordered that the administrator therefore appointed should continue as

such administrator. From that order the protestants appealed to this court, and made the following

assignments of error:

I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap

Caong, without the intervention of any external influence on the part of other persons.

II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at

the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will,

Exhibit 1, is identical with that which appears in the second will, Exhibit A.

IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law.

With reference to the first assignment of error, to wit, that undue influence was brought to bear upon

Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower

court found that no undue influence had been exercised over the mind of the said Tomasa Elizaga YapCaong. While it is true that some of the witnesses testified that the brother of Tomasa, one Lorenzo,

had attempted to unduly influence her mind in the execution of he will, upon the other hand, there

were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the

will, to influence her mind in any way. The lower court having had an opportunity to see, to hear, and

to note the witnesses during their examination reached the conclusion that a preponderance of the


9/70

evidence showed that no undue influence had been used. we find no good reason in the record for

reversing his conclusions upon that question.

With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of

sound mind and memory at the time of the execution of the will, we find the same conflict in the

declarations of the witnesses which we found with reference to the undue influence. While thetestimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong,

yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of

the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to

her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the

will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there

was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of

sound mind and memory and in the possession of her faculties at the time she signed this will. In view

of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel

justified in reversing his conclusions upon that question.

With reference to the third assignment of error, to wit, that the lower court committed an error in

declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1),

is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said:

First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1),

was not the question presented to the court. The question presented was whether or not she had duly

executed the will of August 11, 1909 (Exhibit A).

Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of

August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a

former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose

of her property, in accordance with the provisions of law, up to the very last of moment her life. She

had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a

new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way

sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that The signature of

Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in her

second will (Exhibit A) the inference that she had not signed the second will and all the argument of

the appellants relating to said third assignment of error is based upon the alleged fact that Tomasa

Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her write the name Tomasa. One of the witnesses testified that she had written her full name. We are of the opinion,

and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of

her name tot he will, with the intention to sign the same, that the will amount to a signature. It has

been held time and time again that one who makes a will may sign the same by using a mark, the

name having been written by others. If writing a mark simply upon a will is sufficient indication of the

intention of the person to make and execute a will, then certainly the writing of a portion or all of her


10/70

name ought to be accepted as a clear indication of her intention to execute the will. (Re Goods of

Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs.

Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzens Will, 61 Penn., 196; Re Goods of

Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)

We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited bythe appellees, which was known as Knoxs Appeal. In this case one Harriett S. Knox died very

suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was

found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an

ordinary folded sheet of note paper and bearing the signature simply of Harriett. In this paper the

deceased attempted to make certain disposition of her property. The will was presented for probate.

The probation was opposed upon the ground that the same did not contain the signature of the

deceased. That was the only question presented to the court, whether the signature, in the form

above indicated, was a sufficient signature to constitute said paper the last will and testament of

Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In

deciding that question, Justice Mitchell said:

The precise case of a signature by the first name only, does not appear to have arisen either in

England or the United States; but the principle on which the decisions already referred to were based,

especially those in regard to signing by initials only, are equally applicable to the present case, and

additional force is given to them by the decisions as to what constitutes a binding signature to a

contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33

Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)

The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held

to sign as effectually as if he had written his initials or his full name. It would seem to be sufficient,

under the law requiring a signature by the person making a will, to make his mark, to place his initialsor all or any part of his name thereon. In the present case we think the proof shows, by a large

preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign her

given name Tomasa, and that is sufficient to satisfy the statute.

With reference to the fourth assignment of error, it may be said that the argument which was

preceded is sufficient to answer it also.

During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap

Caong did not sign her name in the presence of the witnesses and that they did not sign their names

in their presence nor in the presence of each other. Upon that question there is considerable conflict of

proof. An effort was made to show that the will was signed by the witnesses in one room and by

Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof

and it was shown that there was but one room; that one part of the room was one or two steps below

the floor of the other; that the table on which the witnesses signed the will was located upon the lower

floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for

her to see the table on which the witnesses signed the will. While the rule is absolute that one who

makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in


11/70

the presence of each other, as well as in the presence of the one making the will, yet, nevertheless,

the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made

where it is possible for each of the necessary parties, if they desire to see, may see the signatures

placed upon the will.

In cases like the present where there is so much conflict in the proof, it is very difficult for the courtsto reach conclusions that are absolutely free from doubt. Great weight must be given by appellate

courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that

opportunity.

Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa

Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all her

faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court

admitting said will to probate is hereby affirmed with costs.

Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.


12/70


Manila

EN BANC

G.R. No. L-13431 November 12, 1919

In 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.

AVANCEA,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 whichcontains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in thename and under the direction of the testatrix) and by three witnesses. The following sheet containsonly 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 byletters; 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 bythe testator and three witnesses in the presence of each other, Act No. 2645 (which is the oneapplicable in the case) evidently has for its object (referring to the body of the will itself) to avoid thesubstitution of any of said sheets, thereby changing the testator's dispositions. But when thesedispositions are wholly written on only one sheet signed at the bottom by the testator and threewitnesses (as the instant case), their signatures on the left margin of said sheet would be completelypurposeless. 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 whichthe testator and the witnesses do not have to sign at the bottom. A different interpretation wouldassume that the statute requires that this sheet, already signed at the bottom, be signed twice. Wecannot 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 addnothing. 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 thebottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficientsecurity.


13/70

In requiring that each and every page of a will must be numbered correlatively in letters placedon 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 onone 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, withoutconsidering whether or not this clause is an essential part of the will, we hold that in the oneaccompanying the will in question, the signatures of the testatrix and of the three witnesses on themargin 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 necessaryin the attestation clause because this, as its name implies, appertains only to the witnesses and notto 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 whichcontains all the testamentary dispositions and is signed at the bottom by the testator and threewitnesses and the second contains only the attestation clause and is signed also at the bottom bythe 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 againstbad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth andauthenticity. Therefore the laws on this subject should be interpreted in such a way as to attain theseprimordal ends. But, on the other hand, also one must not lose sight of the fact that it is not theobject of the law to restrain and curtail the exercise of the right to make a will. So when aninterpretation already given assures such ends, any other interpretation whatsoever, that addsnothing but demands more requisites entirely unnecessary, useless and frustative of the testator'slast will, must be disregarded. lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knewthe dialect in which the will is written. But the circumstance appearing in the will itself that same wasexecuted in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor isenough, in the absence of any proof to the contrary, to presume that she knew this dialect in whichthis will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costsagainst the appellants. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur


14/70


Manila

EN BANC

G.R. No. L-1787 August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,vs.AGUSTIN LIBORO,oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.Ramon Diokno for appellee.

TUASON,J. :

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of whatpurports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 inBalayan, Batangas, on March 3, 1947, almost six months after the document in question wasexecuted. In the court below, the present appellant specified five grounds for his opposition, to wit:(1) that the deceased never executed the alleged will; (2) that his signature appearing in said willwas a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as wellas mental capacity due to advanced age; (4) that, if he did ever execute said will, it was notexecuted and attested as required by law, and one of the alleged instrumental witnesses wasincapacitated to act as such; and it was procured by duress, influence of fear and threats and undueand improper pressure and influence on the part of the beneficiaries instituted therein, principally thetestator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the

signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That thecourt a quo erred in holding that the document Exhibit "A" was executed in all particulars as requiredby law." To this objection is added the alleged error of the court "in allowing the petitioner tointroduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written on one side of a separate sheet.The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is afatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford meansof preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that benecessary, is supplied by other forms of identification more trustworthy than the conventionalnumerical words or characters. The unnumbered page is clearly identified as the first page by theinternal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably acontinuation of the last sentence of the testament, before the attestation clause, which starts at thebottom of the preceding page. Furthermore, the unnumbered page contains the caption


15/70

"TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of histestamentary faculty, all of which, in the logical order of sequence, precede the direction for thedisposition of the marker's property. Again, as page two contains only the two lines abovementioned, the attestation clause, the mark of the testator and the signatures of the witnesses, theother sheet can not by any possibility be taken for other than page one. Abangan vs.

Abangan ,supra , and Fernandez vs. Vergel de Dios , 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of thecredibility of the witnesses is assailed under this heading. On the merits we do not believe that theappellant's contention deserves serious consideration. Such contradictions in the testimony of theinstrumental witnesses as are set out in the appellant's brief are incidents not all of which every oneof the witnesses can be supposed to have perceived, or to recall in the same order in which theyoccurred.

Everyday life and the result of investigations made in the field of experimental psychologyshow that the contradictions of witnesses generally occur in the details of a certain incident,after a long series of questioning, and far from being an evidence of falsehood constitute ademonstration of good faith. Inasmuch as not all those who witness an incident are

impressed in like manner, it is but natural that in relating their impressions they should notagree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for thiswas that the testator was suffering from "partial paralysis." While another in testator's place mighthave directed someone else to sign for him, as appellant contends should have been done, there isnothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiringa will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs.Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial courtcommunicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledgeof Spanish by the testator, the language in which the will is drawn, after the petitioner had rested hiscase and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further evidence after theparty offering the evidence has rested, and this discretion will not be reviewed except where it hasclearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence , and the case may be reopened after the courthas announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective directproofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for goodreasons, in the furtherance of justice, may permit them to offer evidence upon their original case,and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additionalevidence is allowed when it is newly discovered, or where it has been omitted through inadvertenceor mistake, or where the purpose of the evidence is to the evidence is to correct evidence previouslyoffered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission


16/70

to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to amisapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on thetestator's understanding of the language used in the testament. There is no statutory requirementthat such knowledge be expressly stated in the will itself. It is a matter that may be established by

proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel , 46 Phil., 781, in which theprobate of a will written in Tagalog was ordered although it did not say that the testator knew thatidiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapiaknew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez isaffirmed, with costs.

Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.


17/70


Manila

FIRST DIVISION

G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,(deceased): APOLONIO TABOADA, petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J. :

This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte,Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of thewill, the motion for reconsideration and the motion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the alleged last willand testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumentalwitnesses. The second page which contains the attestation clause and the acknowledgment issigned at the end of the attestation clause by the three (3) attesting witnesses and at the left handmargin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication,the trial court commissioned the branch clerk of court to receive the petitioner's evidence.

Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of thesubscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying

the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, thepetitioner was also required to submit the names of the intestate heirs with their correspondingaddresses so that they could be properly notified and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken as aresult of the disallowance of the will. He also asked that the ten-day period required by the court tosubmit the names of intestate heirs with their addresses be held in abeyance.


18/70

The petitioner filed a motion for reconsideration of the order denying the probate of the will.However, the motion together with the previous manifestation and/or motion could not be acted uponby the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The saidmotions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumedthe position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestationand/or motion filed ex parte . In the same order of denial, the motion for the appointment of specialadministrator was likewise denied because of the petitioner's failure to comply with the order requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrixand all the three instrumental and attesting witnesses sign at the end of the will and in the presenceof the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by thetestator himself or by the testator's name written by some other person in hispresence, 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 instrumentalwitnesses 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 correlativelyin 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 someother person to write his name, under his express direction, in the presence of theinstrumental witnesses, and that the lacier witnesses and signed the will and thepages 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 beinterpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial willto be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing

witnesses must also sign at the same place or at the end , in the presence of the testatrix and of oneanother because the attesting witnesses to a will attest not merely the will itself but also thesignature of the testator. It is not sufficient compliance to sign the page, where the end of the will isfound, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it acondition precedent or a matter of absolute necessity for the extrinsic validity of the wig that thesignatures of the subscribing witnesses should be specifically located at the end of the wig after thesignature of the testatrix. He contends that it would be absurd that the legislature intended to place


19/70

so heavy an import on the space or particular location where the signatures are to be found as longas this space or particular location wherein the signatures are found is consistent with good faith andthe honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end bythe testator himself or by the testator's name written by another person in his presence, and by hisexpress direction, and attested and subscribed by three or more credible witnesses in the presenceof the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists inwitnessing the testator's execution of the will in order to see and take note mentally that those thingsare, 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 thesame paper for the purpose of Identification of such paper as the will which was executed by thetestator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in thiscase was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attestednot only to the genuineness of the signature of the testatrix but also the due execution of the will asembodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usualforms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the

provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes butwith 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 themodern tendency in respect to the formalities in the execution of a will" ( Report of the Codecommission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for thedefect in the place of signatures of the witnesses, he would have found the testimony sufficient toestablish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case whenthe instrumental witnesses signed at the left margin of the sole page which contains all thetestamentary dispositions, especially so when the will was properly Identified by subscribing witnessVicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state thenumber of pages used in writing the will. This would have been a fatal defect were it not for the factthat, in this case, it is discernible from the entire wig that it is really and actually composed of onlytwo pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first


20/70

page which contains the entirety of the testamentary dispositions is signed by the testatrix at the endor at the bottom while the instrumental witnesses signed at the left margin. The other page which ismarked as "Pagina dos" comprises the attestation clause and the acknowledgment. Theacknowledgment itself states that "This Last Will and Testament consists of two pages including thispage".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations withrespect to the purpose of the requirement that the attestation clause must state the number of pagesused:

The law referred to is article 618 of the Code of Civil Procedure, as amended by ActNo. 2645, which requires that the attestation clause shall state the number of pagesor sheets upon which the win is written, which requirement has been held to bemandatory 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 theproperty is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; UyCoque vs . Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quintovs. 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 astatement of the number of sheets or pages composing the will and that if this ismissing or is omitted, it will have the effect of invalidating the will if the deficiencycannot be supplied, not by evidence aliunde, but by a consideration or examinationof the will itself. But here the situation is different. While the attestation clause doesnot state the number of sheets or pages upon which the will is written, however, thelast part of the body of the will contains a statement that it is composed of eightpages, 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 moreliberal view has been adopted to prevent the will of the testator from being defeatedby purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberalapproach:

... Impossibility of substitution of this page is assured not only (sic) the fact that thetestatrix and two other witnesses did sign the defective page, but also by its bearingthe coincident imprint of the seal of the notary public before whom the testament wasratified by testatrix and all three witnesses. The law should not be so strictly andliterally interpreted as to penalize the testatrix on account of the inadvertence of asingle witness over whose conduct she had no control where the purpose of the lawto guarantee the Identity of the testament and its component pages is sufficientlyattained, no intentional or deliberate deviation existed, and the evidence on recordattests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)

'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court whichdenied the probate of tile will, the motion for reconsideration of the denial of probate, and the motionfor appointment of a special administrator are set aside. The respondent court is ordered to allow theprobate of the wig and to conduct further proceedings in accordance with this decision. Nopronouncement on costs.

SO ORDERED.


21/70


Manila

EN BANC

G.R. No. L-5971 February 27, 1911

BEATRIZ 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 instrumentpropounded as a will in the court below, is whether one of the subscribing witnesses was present inthe small room where it was executed at the time when the testator and the other subscribingwitnesses attached their signatures; or whether at that time he was outside, some eight or ten feetaway, in a large room connecting with the smaller room by a doorway, across which was hung acurtain 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 smallroom 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 theaffirmance of the decree admitting the document to probate as the last will and testament of thedeceased.

The trial judge does not appear to have considered the determination of this question of fact of vitalimportance in the determination of this case, as he was of opinion that under the doctrine laid downin the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribingwitnesses was in the outer room when the testator and the other describing witnesses signed theinstrument in the inner room, had it been proven, would not be sufficient in itself to invalidate theexecution of the will. But we are unanimously of opinion that had this subscribing witness beenproven to have been in the outer room at the time when the testator and the other subscribingwitnesses attached their signatures to the instrument in the inner room, it would have been invalid asa will, the attaching of those signatures under circumstances not being done "in the presence" of thewitness in the outer room. This because the line of vision from this witness to the testator and theother subscribing witnesses would necessarily have been impeded by the curtain separating theinner 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 notwhether they actually saw each other sign, but whether they might have been seen eachother sign, had they chosen to do so, considering their mental and physical condition andposition with relation to each other at the moment of inscription of each signature.


22/70

But it is especially to be noted that the position of the parties with relation to each other at themoment 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 witnessesmay be held to have executed the instrument in the presence of each other if it appears that theywould not have been able to see each other sign at that moment, without changing their relativepositions 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 physicallypresent and in such position with relation to Jaboneta that he could see everything that took place bymerely casting his eyes in the proper direction and without any physical obstruction to prevent hisdoing so ." And the decision merely laid down the doctrine that the question whether the testator andthe subscribing witnesses to an alleged will sign the instrument in the presence of each other doesnot 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 withrelation to each other were such that by merely casting the eyes in the proper direction they couldhave seen each other sign. To extend the doctrine further would open the door to the possibility of allmanner 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 asthe last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instanceagainst the appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.


23/70


Manila

FIRST DIVISION

G.R. No. 124371 November 23, 2000

PAULA T. LLORENTE, petitioner, vs.COURT OF APPEALS and ALICIA F. LLORENTE,respondents.

D E C I S I O N

PARDO, J.:

The Case

The case raises a conflict of laws issue.

What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of theRegional Trial Court, Camarines Sur, Branch 35, Iriga City 2 declaring respondent Alicia F. Llorente(herinafter referred to as "Alicia"), as co-owners of whatever property she and the deceased LorenzoN. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25)years that they lived together as husband and wife.

The Facts

The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy fromMarch 10, 1927 to September 30, 1957. 3

On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula")were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4

Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed inthe conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5

On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, SouthernDistrict of New York. 6

Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted anaccrued leave by the U. S. Navy, to visit his wife and he visited the Philippines. 7 He discovered thathis wife Paula was pregnant and was "living in" and having an adulterous relationship with hisbrother, Ceferino Llorente .8

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabuaas "Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the fathers name was left blank .9
http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt1http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt1http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt2http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt2http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt3http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt4http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt5http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt6http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt7http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt7http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt8http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt8http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt9http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt9http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt1http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt2http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt3http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt4http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt5http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt6http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt7http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt8http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt9


24/70

Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew awritten agreement to the effect that (1) all the family allowances allotted by the United States Navyas part of Lorenzos salary and all other obligations for Paulas daily maintenance and support wouldbe suspended; (2) they would dissolve their marital union in accordance with judicial proceedings;(3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily

admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed byboth Lorenzo and Paula and was witnessed by Paulas father and stepmother. The agreement wasnotarized by Notary Public Pedro Osabel. 10

Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented bycounsel, John Riley, and actively participated in the proceedings. On November 27, 1951, theSuperior Court of the State of California, for the County of San Diego found all factual allegations tobe true and issued an interlocutory judgment of divorce. 11

On December 4, 1952, the divorce decree became final. 12

In the meantime, Lorenzo returned to the Philippines.

On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia had noknowledge of the first marriage even if they resided in the same town as Paula, who did not opposethe marriage or cohabitation. 14

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25)year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16

On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by NotaryPublic Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo,Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and

their three children, to wit:

"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot,located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal propertiesand other movables or belongings that may be found or existing therein;

"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F.Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua,Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua,Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;

"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children,Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties locatedin Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in

Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines;

"(4) That their respective shares in the above-mentioned properties, whether real or personalproperties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could onlybe sold, ceded, conveyed and disposed of by and among themselves;
http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt10http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt11http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt12http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt13http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt13http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt14http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt15http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt16http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt10http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt11http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt12http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt13http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt14http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt15http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt16


25/70

"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will andTestament, and in her default or incapacity of the latter to act, any of my children in the order of age,if of age;

"(6) I hereby direct that the executor named herein or her lawful substitute should served ( sic )without bond;

"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretoforeexecuted, signed, or published, by me;

"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Sideshould ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and mychildren with respect to any real or personal properties I gave and bequeathed respectively to eachone of them by virtue of this Last Will and Testament." 17

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petitionfor the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia beappointed Special Administratrix of his estate. 18

On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo wasstill alive .19

On January 24, 1984, finding that the will was duly executed, the trial court admitted the will toprobate .20

On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21

On September 4, 1985, Paula filed with the same court a petition 22 for letters of administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) thatthe various property were acquired during their marriage, (3) that Lorenzos will disposed of all his

property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugalproperty .23

On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary. 24

On October 14, 1985, without terminating the testate proceedings, the trial court gave due course toPaulas petition in Sp. Proc. No. IR-888. 25

On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26

On May 18, 1987, the Regional Trial Court issued a joint decision, thus:

"Wherefore, considering that this court has so found that the divorce decree granted to the lateLorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contractedwith Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of

Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled toreceive any share from the estate even if the will especially said so her relationship with Lorenzohaving gained the status of paramour which is under Art. 739 (1).
http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt17http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt18http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt19http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt19http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt20http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt20http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt21http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt22http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt23http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt23http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt24http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt25http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt26http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt17http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt18http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt19http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt20http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt21http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt22http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt23http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt24http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt25http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt26


26/70

"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declaresthe intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declaresher entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primarycompulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then one-thirdshould go to the illegitimate children, Raul, Luz and Beverly, all surname ( sic ) Llorente, for them topartition in equal shares and also entitled to the remaining free portion in equal shares.

"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, LorenzoLlorente. As such let the corresponding letters of administration issue in her favor upon her filing abond in the amount ( sic ) of P100,000.00 conditioned for her to make a return to the court withinthree (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estatewhich shall at any time come to her possession or to the possession of any other person for her, andfrom the proceeds to pay and discharge all debts, legacies and charges on the same, or suchdividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the courtand to perform all orders of this court by her to be performed.

"On the other matters prayed for in respective petitions for want of evidence could not be granted.

"SO ORDERED." 27

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28

On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified itsearlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not legally adopted by him. 29 Amending its decision of May 18, 1987, thetrial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third(1/3) of the estate and one-third (1/3) of the free portion of the estate. 30

On September 28, 1987, respondent appealed to the Court of Appeals. 31

On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification thedecision of the trial court in this wise:

"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquiredduring the twenty-five (25) years of cohabitation.

"SO ORDERED." 32

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of thedecision. 33

On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit.

Hence, this petition. 35

The Issue

Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue issimple. Who are entitled to inherit from the late Lorenzo N. Llorente?
http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt27http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt28http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt29http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt30http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt31http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt32http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt33http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt34http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt34http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt35http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt36http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt36http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt27http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt28http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt29http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt30http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt31http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt32http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt33http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt34http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt35http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt36


27/70

We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased.

The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before and at the timeof: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is dulyestablished, admitted and undisputed.

Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.

The Civil Code clearly provides:

"Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines , even though living abroad.

"Art. 16. Real property as well as personal property is subject to the law of the country where it issituated.

"However, intestate and testamentary succession, both with respect to the order of succession andto the amount of successional rights and to the intrinsic validity of testamentary provisions, shall beregulated by the national law of the person whose succession is under consideration ,whatever may be the nature of the property and regardless of the country wherein said property maybe found." ( emphasis ours )

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized totake judicial notice of them. Like any other fact, they must be alleged and proved. 37

While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreignlaw. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case

was "referred back" to the law of the decedents domicile, in this case, Philippine law.

We note that while the trial court stated that the law of New York was not sufficiently proven, in thesame breath it made the categorical, albeit equally unproven statement that "American law followsthe domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will. 38

First , there is no such thing as one American law. 1wph!1 The "national law" indicated in Article 16 of theCivil Code cannot possibly apply to general American law. There is no such law governing thevalidity of testamentary provisions in the United States. Each State of the union has its own lawapplicable to its citizens and in force only within the State. It can therefore refer to no other than thelaw of the State of which the decedent was a resident. 39 Second , there is no showing that theapplication of the renvoi doctrine is called for or required by New York State law.

The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial courts opinion was a mere paramour . The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing.

The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines.
http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt37http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt38http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt39http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt39http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt37http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt38http://www.lawphil.net/judjuris/juri2000/nov2000/gr_124371_2000.html#fnt39


28/70

The hasty application of Philippine law and the complete disregard of the will, already probated asduly executed in accordance with the formalities of Philippine law, is fatal, especially in light of thefactual and legal circumstances here obtaining .

Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr .40 we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, thesame being considered contrary to our concept of public policy and morality. In the same case, theCourt ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.

Citing this landmark case, the Court held in Quita v. Court of Appeals ,41 that once proven thatrespondent was no longer a Filipino citizen when he obtained the divorce from petitioner,

Documents

Wills Full text