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.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC
CHURCH OF MOLO, AND ASILO DE MOLO,petitioners, 
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
 
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had
already been decided by us in the past. In G.R. No. L-30479, 1which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed
the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said ruling,
the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the
dismissal, again, the petitioners came to this Court on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and
thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private
respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of First Instance of Iloilo and was
docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties — Aldina, Constancio,
Panfilo, and Felino — executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did on March 21, 1964.
That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as
heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of
the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners
Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance of the will When the trial court denied their motion, the petitioner came to us by
way of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana,
Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based
its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy
of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we
do not view such facts, even considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the
will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the testator, the
will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled
with animus revocandi  on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another
person but under the  express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction.
There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express
direction of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the
two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that
the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be shaken to its very foundations ...."  4
The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res
adjudicata.  They claim that this bar was brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings
therein and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3)
the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in
Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for
probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After
all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can
not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no
Identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in
the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these additional matters raised by the private
respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its
allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.
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.
G.R. No. 177099               June 8, 2011
EDUARDO G. AGTARAP, Petitioner, 
vs.
SEBASTIAN AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE SANTOS, and ABELARDO DAGORO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177192
SEBASTIAN G. AGTARAP, Petitioner, 
vs.
EDUARDO G. AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE SANTOS, and ABELARDO DAGORO, Respondents.
DECISION
NACHURA, J.:
Before us are the consolidated petitions for review on certiorari of petitioners Sebastian G. Agtarap (Sebastian) 1and Eduardo G. Agtarap (Eduardo),2 assailing the Decision
dated November 21, 20063 and the Resolution dated March 27, 2007 4 of the Court of Appeals (CA) in CA-G.R. CV No. 73916.
The antecedent facts and proceedings—
On September 15, 1994, Eduardo filed with the Regional Trial Court (RTC), Branch 114, Pasay City, a verified petition for the judicial settlement of the estate of his deceased
father Joaquin Agtarap (Joaquin). It was docketed as Special Proceedings No. 94-4055.
The petition alleged that Joaquin died intestate on November 21, 1964 in Pasay City without any known debts or obligations. During his lifetime, Joaquin contracted two
marriages, first with Lucia Garcia (Lucia),5 and second with Caridad Garcia (Caridad). Lucia died on April 24, 1924. Joaquin and Lucia had three children—Jesus (died without
issue), Milagros, and Jose (survived by three children, namely, Gloria, 6 Joseph, and Teresa7). Joaquin married Caridad on February 9, 1926. They also had three children—
Eduardo, Sebastian, and Mercedes (survived by her daughter Cecile). At the time of his death, Joaquin left two parcels of land with improvements in Pasay City, covered by
Transfer Certificates of Title (TCT) Nos. 873-(38254) and 874-(38255). Joseph, a grandson of Joaquin, had been leasing and improving the said realties and had been
appropriating for himselfP26,000.00 per month since April 1994.
Eduardo further alleged that there was an imperative need to appoint him as special administrator to take possession and charge of the estate assets and their civil fruits,
pending the appointment of a regular administrator. In addition, he prayed that an order be issued (a) confirming and declaring the named compulsory heirs of Joaquin
who would be entitled to participate in the estate; (b) apportioning and allocating unto the named heirs their aliquot shares in the estate in accordance with law; and (c)
entitling the distributees the right to receive and enter into possession those parts of the estate individually awarded to them.
On September 26, 1994, the RTC issued an order setting the petition for initial hearing and directing Eduardo to cause its publication.
On December 28, 1994, Sebastian filed his comment, generally admitting the allegations in the petition, and conceding to the appointment of Eduardo as special
administrator.
Joseph, Gloria, and Teresa filed their answer/opposition. They alleged that the two subject lots belong to the conjugal partnership of Joaquin with Lucia, and that, upon
Lucia’s death in April 1924, they became the pro indiviso owners of the subject properties. They said that their residence was built with the exclusive money of their late
father Jose, and the expenses of the extensions to the house were shouldered by Gloria and Teresa, while the restaurant (Manong’s Restaurant) was built with the exclusive
money of Joseph and his business partner. They opposed the appointment of Eduardo as administrator on the following grounds: (1) he is not physically and mentally fit to
do so; (2) his interest in the lots is minimal; and (3) he does not possess the desire to earn. They claimed that the best interests of the estate dictate that Joseph be
appointed as special or regular administrator.
On February 16, 1995, the RTC issued a resolution appointing Eduardo as regular administrator of Joaquin’s estate. Consequently, it issued him letters of administration.
On September 16, 1995, Abelardo Dagoro filed an answer in intervention, alleging that Mercedes is survived not only by her daughter Cecile, but also by him as her
husband. He also averred that there is a need to appoint a special administrator to the estate, but claimed that Eduardo is not the person best qualified for the task.
After the parties were given the opportunity to be heard and to submit their respective proposed projects of partition, the RTC, on October 23, 2000, issued an Order of
Partition,8 with the following disposition—
In the light of the filing by the heirs of their respective proposed projects of partition and the payment of inheritance taxes due the estate as early as 1965, and there being
no claim in Court against the estate of the deceased, the estate of JOAQUIN AGTARAP is now consequently – ripe – for distribution among the heirs minus the surviving
spouse Caridad Garcia who died on August 25, 1999.
Considering that the bulk of the estate property were acquired during the existence of the second marriage as shown by TCT No. (38254) and TCT No. (38255) which
showed on its face that decedent was married to Caridad Garcia, which fact oppositors failed to contradict by evidence other than their negative allegations, the greater
part of the estate is perforce accounted by the second marriage and the compulsory heirs thereunder.
The Administrator, Eduardo Agtarap rendered a true and just accounting of his administration from his date of assumption up to the year ending December 31, 1996 per
Financial and Accounting Report dated June 2, 1997 which was approved by the Court. The accounting report included the income earned and received for the period and
the expenses incurred in the administration, sustenance and allowance of the widow. In accordance with said Financial and Accounting Report which was duly approved by
this Court in its Resolution dated July 28, 1998 – the deceased JOAQUIN AGTARAP left real properties consisting of the following:
I LAND:
Two lots and two buildings with one garage quarter located at #3030 Agtarap St., Pasay City, covered by Transfer Certificate of Title Nos. 38254 and 38255 and registered
with the Registry of Deeds of Pasay City, Metro Manila, described as follows:

TCT NO. LOT NO. AREA/SQ.M. ZONAL VALUE AMOUNT

38254 745-B-1 1,335 sq. m. P5,000.00 P6,675,000.00

38255 745-B-2 1,331 sq. m. P5,000.00 P6,655,000.00

TOTAL------------------------------------------------------------- P13,330,000.00

II BUILDINGS AND IMPROVEMENTS:

BUILDING I (Lot # 745-B-1) ------------------------------ P350,000.00

BUILDING II (Lot # 745-B-2) ----------------------------- 320,000.00

Building Improvements -------------------------------------- 97,500.00

Restaurant ------------------------------------------------------ 80,000.00

 TOTAL --------------------------------------------------------- P847,500.00

TOTAL NET WORTH ----------------------------------------- P14,177,500.00

WHEREFORE, the net assets of the estate of the late JOAQUIN AGTARAP with a total value of P14,177,500.00, together with whatever interest from bank deposits and all
other incomes or increments thereof accruing after the Accounting Report of December 31, 1996, after deducting therefrom the compensation of the administrator and
other expenses allowed by the Court, are hereby ordered distributed as follows:
TOTAL ESTATE – P14,177,500.00
CARIDAD AGTARAP – ½ of the estate as her conjugal share – P7,088,750.00, the other half of P7,088,750.00 – to be divided among the compulsory heirs as follows:

1) JOSE (deceased) - P1,181,548.30

2) MILAGROS (deceased) - P1,181,548.30

3) MERCEDES (deceased) - P1,181,548.30

4) SEBASTIAN - P1,181,548.30

5) EDUARDO - P1,181,548.30

6) CARIDAD - P1,181,548.30

The share of Milagros Agtarap as compulsory heir in the amount of P1,181,548.30 and who died in 1996 will go to Teresa Agtarap and Joseph Agtarap, Walter de Santos
and half brothers Eduardo and Sebastian Agtarap in equal proportions.

TERESA AGTARAP - P236,291.66

JOSEPH AGTARAP - P236,291.66

WALTER DE SANTOS - P236,291.66

SEBASTIAN AGTARAP - P236,291.66

EDUARDO AGTARAP - P236,291.66

Jose Agtarap died in 1967. His compulsory heirs are as follows:

COMPULSORY HEIRS:

1) GLORIA – (deceased) – represented by Walter de Santos –

 - P295,364.57

2) JOSEPH AGTARAP - P295,364.57

3) TERESA AGTARAP - P295,364.57

4) PRISCILLA AGTARAP - P295,364.57

Hence, Priscilla Agtarap will inherit P295,364.57.

Adding their share from Milagros Agtarap, the following heirs of the first marriage stand to receive the total amount of:
HEIRS OF THE FIRST MARRIAGE:
1avvphi1

1) JOSEPH AGTARAP - P236,291.66 – share from Milagros Agtarap

P295,364.57 – as compulsory heir of
P531,656.23 Jose Agtarap

2) TERESA AGTARAP - P236,291.66 – share from Milagros Agtarap

P295,364.57 – as compulsory heir of
P531,656.23 Jose Agtarap

3) WALTER DE SANTOS - P236,291.66 – share from Milagros Agtarap

P295,364.57 – as compulsory heir of
P531,656.23 Jose Agtarap

HEIRS OF THE SECOND MARRIAGE:

a) CARIDAD AGTARAP - died on August 25, 1999

P7,088,750.00 - as conjugal share

P1,181,458.30 - as compulsory heir

Total of P8,270,208.30
 b) SEBASTIAN AGTARAP - P1,181,458.38 – as compulsory heir

P 236,291.66 – share from Milagros

c) EDUARDO AGTARAP - P1,181,458.38 – as compulsory heir

P 236,291.66 – share from Milagros

d) MERCEDES - as represented by Abelardo Dagoro as the

surviving spouse of a compulsory heir

P1,181,458.38

REMAINING HEIRS OF CARIDAD AGTARAP:

1) SEBASTIAN AGTARAP
2) EDUARDO AGTARAP
MERCEDES AGTARAP (Predeceased Caridad Agtarap)
In sum, Sebastian Agtarap and Eduardo Agtarap stand to inherit:

SEBASTIAN – P4,135,104.10 – share from Caridad Garcia

P1,181,458.30 - as compulsory heir
P 236,291.66 - share from Milagros

P5,522,854.06

EDUARDO – P4,135,104.10 – share from Caridad Garcia

P1,181,458.30 – as compulsory heir
P 236,291.66 – share from Milagros

P5,522,854.06

SO ORDERED.9
Eduardo, Sebastian, and oppositors Joseph and Teresa filed their respective motions for reconsideration.
On August 27, 2001, the RTC issued a resolution 10 denying the motions for reconsideration of Eduardo and Sebastian, and granting that of Joseph and Teresa. It also
declared that the real estate properties belonged to the conjugal partnership of Joaquin and Lucia. It also directed the modification of the October 23, 2000 Order of
Partition to reflect the correct sharing of the heirs. However, before the RTC could issue a new order of partition, Eduardo and Sebastian both appealed to the CA.
On November 21, 2006, the CA rendered its Decision, the dispositive portion of which reads—
WHEREFORE, premises considered, the instant appeals are DISMISSED for lack of merit. The assailed Resolution dated August 27, 2001 is AFFIRMED and pursuant thereto,
the subject properties (Lot No. 745-B-1 [TCT No. 38254] and Lot No. 745-B-2 [TCT No. 38255]) and the estate of the late Joaquin Agtarap are hereby partitioned as follows:
The two (2) properties, together with their improvements, embraced by TCT No. 38254 and TCT No. 38255, respectively, are first to be distributed among the following:
Lucia Mendietta - ½ of the property. But since she is deceased, her share shall be inherited by Joaquin, Jesus, Milagros and Jose in equal shares.
Joaquin Agtarap - ½ of the property and ¼ of the other half of the property which pertains to Lucia Mendietta’s share.
Jesus Agtarap - ¼ of Lucia Mendietta’s share. But since he is already deceased (and died without issue), his inheritance shall, in turn, be acquired by Joaquin Agtarap.
Milagros Agtarap - ¼ of Lucia Mendietta’s share. But since she died in 1996 without issue, 5/8 of her inheritance shall be inherited by Gloria (represented by her husband
Walter de Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited by
Mercedes (represented by her husband Abelardo Dagoro and her daughter Cecile), Sebastian Eduardo, all surnamed Agtarap.
Jose Agtarap - ¼ of Lucia Mendietta’s share. But since he died in 1967, his inheritance shall be acquired by his wife Priscilla, and children Gloria (represented by her
husband Walter de Santos and her daughter Samantha), Joseph Agtarap and Teresa in equal shares.
Then, Joaquin Agtarap’s estate, comprising three-fourths (3/4) of the subject properties and its improvements, shall be distributed as follows:
Caridad Garcia - 1/6 of the estate. But since she died in 1999, her share shall be inherited by her children namely Mercedes Agtarap (represented by her husband Abelardo
Dagoro and her daughter Cecilia), Sebastian Agtarap and Eduardo Agtarap in their own right, dividing the inheritance in equal shares.
Milagros Agtarap - 1/6 of the estate. But since she died in 1996 without issue, 5/8 of her inheritance shall be inherited by Gloria (represented by her husband Walter de
Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of Milagros’ brother Jose Agtarap) and 1/8 each shall be inherited by Mercedes
(represented by her husband Abelardo Dagoro and her daughter Cecile), Sebastian and Eduardo, all surnamed Agtarap.
Jose Agtarap - 1/6 of the estate. But since he died in 1967, his inheritance shall be acquired by his wife Priscilla, and children Gloria (represented by her husband Walter de
Santos and her daughter Samantha), Joseph Agtarap and Teresa Agtarap in equal shares.
Mercedes Agtarap - 1/6 of the estate. But since she died in 1984, her inheritance shall be acquired by her husband Abelardo Dagoro and her daughter Cecile in equal
shares.
Sebastian Agtarap - 1/6 of the estate.
Eduardo Agtarap - 1/6 of the estate.
SO ORDERED.11
Aggrieved, Sebastian and Eduardo filed their respective motions for reconsideration.
In its Resolution dated March 27, 2007, the CA denied both motions. Hence, these petitions ascribing to the appellate court the following errors:
G.R. No. 177192
1. – The Court of Appeals erred in not considering the aforementioned important facts 12 which alter its Decision;
2. – The Court of Appeals erred in not considering the necessity of hearing the issue of legitimacy of respondents as heirs;
3. – The Court of Appeals erred in allowing violation of the law and in not applying the doctrines of collateral attack, estoppel, and res judicata. 13
G.R. No. 177099
THE COURT OF APPEALS (FORMER TWELFTH DIVISION) DID NOT ACQUIRE JURISDICTION OVER THE ESTATE OF MILAGROS G. AGTARAP AND ERRED IN DISTRIBUTING
HER INHERITANCE FROM THE ESTATE OF JOAQUIN AGTARAP NOTWITHSTANDING THE EXISTENCE OF HER LAST WILL AND TESTAMENT IN VIOLATION OF THE DOCTRINE
OF PRECEDENCE OF TESTATE PROCEEDINGS OVER INTESTATE PROCEEDINGS.
II.
THE COURT OF APPEALS (FORMER TWELFTH DIVISION) ERRED IN DISMISSING THE DECISION APPEALED FROM FOR LACK OF MERIT AND IN AFFIRMING THE ASSAILED
RESOLUTION DATED AUGUST 27, 2001 OF THE LOWER COURT HOLDING THAT THE PARCELS OF LAND COVERED BY TCT NO. 38254 AND TCT (NO.) 38255 OF THE
REGISTRY OF DEEDS FOR THE CITY OF PASAY BELONG TO THE CONJUGAL PARTNERSHIP OF JOAQUIN AGTARAP MARRIED TO LUCIA GARCIA MENDIETTA
NOTWITHSTANDING THEIR REGISTRATION UNDER THEIR EXISTING CERTIFICATES OF TITLE AS REGISTERED IN THE NAME OF JOAQUIN AGTARAP, CASADO CON CARIDAD
GARCIA. UNDER EXISTING JURISPRUDENCE, THE PROBATE COURT HAS NO POWER TO DETERMINE THE OWNERSHIP OF THE PROPERTY DESCRIBED IN THESE
CERTIFICATES OF TITLE WHICH SHOULD BE RESOLVED IN AN APPROPRIATE SEPARATE ACTION FOR A TORRENS TITLE UNDER THE LAW IS ENDOWED WITH
INCONTESTABILITY UNTIL IT HAS BEEN SET ASIDE IN THE MANNER INDICATED IN THE LAW ITSELF. 14
As regards his first and second assignments of error, Sebastian contends that Joseph and Teresa failed to establish by competent evidence that they are the legitimate heirs
of their father Jose, and thus of their grandfather Joaquin. He draws attention to the certificate of title (TCT No. 8026) they submitted, stating that the wife of their father
Jose is Presentacion Garcia, while they claim that their mother is Priscilla. He avers that the marriage contracts proffered by Joseph and Teresa do not qualify as the best
evidence of Jose’s marriage with Priscilla, inasmuch as they were not authenticated and formally offered in evidence. Sebastian also asseverates that he actually questioned
the legitimacy of Joseph and Teresa as heirs of Joaquin in his motion to exclude them as heirs, and in his reply to their opposition to the said motion. He further claims that
the failure of Abelardo Dagoro and Walter de Santos to oppose his motion to exclude them as heirs had the effect of admitting the allegations therein. He points out that
his motion was denied by the RTC without a hearing.
With respect to his third assigned error, Sebastian maintains that the certificates of title of real estate properties subject of the controversy are in the name of Joaquin
Agtarap, married to Caridad Garcia, and as such are conclusive proof of their ownership thereof, and thus, they are not subject to collateral attack, but should be threshed
out in a separate proceeding for that purpose. He likewise argues that estoppel applies against the children of the first marriage, since none of them registered any
objection to the issuance of the TCTs in the name of Caridad and Joaquin only. He avers that the estate must have already been settled in light of the payment of the estate
and inheritance tax by Milagros, Joseph, and Teresa, resulting to the issuance of TCT No. 8925 in Milagros’ name and of TCT No. 8026 in the names of Milagros and Jose. He
also alleges that res judicata is applicable as the court order directing the deletion of the name of Lucia, and replacing it with the name of Caridad, in the TCTs had long
become final and executory.
In his own petition, with respect to his first assignment of error, Eduardo alleges that the CA erroneously settled, together with the settlement of the estate of Joaquin, the
estates of Lucia, Jesus, Jose, Mercedes, Gloria, and Milagros, in contravention of the principle of settling only one estate in one proceeding. He particularly questions the
distribution of the estate of Milagros in the intestate proceedings despite the fact that a proceeding was conducted in another court for the probate of the will of Milagros,
bequeathing all to Eduardo whatever share that she would receive from Joaquin’s estate. He states that this violated the rule on precedence of testate over intestate
proceedings.
Anent his second assignment of error, Eduardo contends that the CA gravely erred when it affirmed that the bulk of the realties subject of this case belong to the first
marriage of Joaquin to Lucia, notwithstanding that the certificates of title were registered in the name of Joaquin Agtarap casado con ("married to") Caridad Garcia.
According to him, the RTC, acting as an intestate court with limited jurisdiction, was not vested with the power and authority to determine questions of ownership, which
properly belongs to another court with general jurisdiction.
The Court’s Ruling
As to Sebastian’s and Eduardo’s common issue on the ownership of the subject real properties, we hold that the RTC, as an intestate court, had jurisdiction to resolve the
same.
The general rule is that the jurisdiction of the trial court, either as a probate or an intestate court, relates only to matters having to do with the probate of the will and/or
settlement of the estate of deceased persons, but does not extend to the determination of questions of ownership that arise during the proceedings. 15 The patent rationale
for this rule is that such court merely exercises special and limited jurisdiction. 16 As held in several cases,17 a probate court or one in charge of estate proceedings, whether
testate or intestate, cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties, not by virtue of
any right of inheritance from the deceased but by title adverse to that of the deceased and his estate. All that the said court could do as regards said properties is to
determine whether or not they should be included in the inventory of properties to be administered by the administrator. If there is no dispute, there poses no problem, but
if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action before a court exercising general jurisdiction for a final
determination of the conflicting claims of title.
However, this general rule is subject to exceptions as justified by expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or a testate proceeding the question of inclusion in, or exclusion from, the inventory of a piece of
property without prejudice to the final determination of ownership in a separate action. 18 Second, if the interested parties are all heirs to the estate, or the question is one of
collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the probate
court is competent to resolve issues on ownership. 19Verily, its jurisdiction extends to matters incidental or collateral to the settlement and distribution of the estate, such as
the determination of the status of each heir and whether the property in the inventory is conjugal or exclusive property of the deceased spouse. 20
We hold that the general rule does not apply to the instant case considering that the parties are all heirs of Joaquin and that no rights of third parties will be impaired by
the resolution of the ownership issue. More importantly, the determination of whether the subject properties are conjugal is but collateral to the probate court’s jurisdiction
to settle the estate of Joaquin.1auuphi1
It should be remembered that when Eduardo filed his verified petition for judicial settlement of Joaquin’s estate, he alleged that the subject properties were owned by
Joaquin and Caridad since the TCTs state that the lots were registered in the name of Joaquin Agtarap, married to Caridad Garcia. He also admitted in his petition that
Joaquin, prior to contracting marriage with Caridad, contracted a first marriage with Lucia. Oppositors to the petition, Joseph and Teresa, however, were able to present
proof before the RTC that TCT Nos. 38254 and 38255 were derived from a mother title, TCT No. 5239, dated March 17, 1920, in the name of FRANCISCO VICTOR BARNES Y
JOAQUIN AGTARAP, el primero casado con Emilia Muscat, y el Segundo con Lucia Garcia Mendietta (FRANCISCO VICTOR BARNES y JOAQUIN AGTARAP, the first married
to Emilia Muscat, and the second married to Lucia Garcia Mendietta). 21 When TCT No. 5239 was divided between Francisco Barnes and Joaquin Agtarap, TCT No. 10864, in
the name of Joaquin Agtarap, married to Lucia Garcia Mendietta, was issued for a parcel of land, identified as Lot No. 745 of the Cadastral Survey of Pasay, Cadastral Case
No. 23, G.L.R.O. Cadastral Record No. 1368, consisting of 8,872 square meters. This same lot was covered by TCT No. 5577 (32184) 22 issued on April 23, 1937, also in the
name of Joaquin Agtarap, married to Lucia Garcia Mendietta.
The findings of the RTC and the CA show that Lucia died on April 24, 1924, and subsequently, on February 9, 1926, Joaquin married Caridad. It is worthy to note that TCT
No. 5577 (32184) contained an annotation, which reads—
Ap-4966 – NOTA: Se ha enmendado el presente certificado de titulo, tal como aparece, tanchando las palabras "con Lucia Garcia Mendiet[t]a" y poniendo en su lugar, entre
lineas y en tinta encarnada, las palabras "en segundas nupcias con Caridad Garcia", en complimiento de un orden de fecha 28 de abril de 1937, dictada por el Hon. Sixto de
la Costa, juez del Juzgado de Primera Instancia de Rizal, en el expediente cadastal No. 23, G.L.R.O. Cad. Record No. 1368; copia de cual orden has sido presentada con el No.
4966 del Libro Diario, Tomo 6.0 y, archivada en el Legajo T-No. 32184.
Pasig, Rizal, a 29 abril de 1937.23
Thus, per the order dated April 28, 1937 of Hon. Sixto de la Costa, presiding judge of the Court of First Instance of Rizal, the phrase con Lucia Garcia Mendiet[t]a was
crossed out and replaced by en segundas nuptias con Caridad Garcia, referring to the second marriage of Joaquin to Caridad. It cannot be gainsaid, therefore, that prior to
the replacement of Caridad’s name in TCT No. 32184, Lucia, upon her demise, already left, as her estate, one-half (1/2) conjugal share in TCT No. 32184. Lucia’s share in the
property covered by the said TCT was carried over to the properties covered by the certificates of title derivative of TCT No. 32184, now TCT Nos. 38254 and 38255. And as
found by both the RTC and the CA, Lucia was survived by her compulsory heirs – Joaquin, Jesus, Milagros, and Jose.
Section 2, Rule 73 of the Rules of Court provides that when the marriage is dissolved by the death of the husband or the wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid; in the testate or intestate proceedings of the deceased spouse, and if both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either. Thus, the RTC had jurisdiction to determine whether the properties are conjugal as it had to
liquidate the conjugal partnership to determine the estate of the decedent. In fact, should Joseph and Teresa institute a settlement proceeding for the intestate estate of
Lucia, the same should be consolidated with the settlement proceedings of Joaquin, being Lucia’s spouse. 24 Accordingly, the CA correctly distributed the estate of Lucia,
with respect to the properties covered by TCT Nos. 38254 and 38255 subject of this case, to her compulsory heirs.
Therefore, in light of the foregoing evidence, as correctly found by the RTC and the CA, the claim of Sebastian and Eduardo that TCT Nos. 38254 and 38255 conclusively
show that the owners of the properties covered therein were Joaquin and Caridad by virtue of the registration in the name of Joaquin Agtarap casado con (married to)
Caridad Garcia, deserves scant consideration. This cannot be said to be a collateral attack on the said TCTs. Indeed, simple possession of a certificate of title is not
necessarily conclusive of a holder’s true ownership of property. 25 A certificate of title under the Torrens system aims to protect dominion; it cannot be used as an instrument
for the deprivation of ownership.26 Thus, the fact that the properties were registered in the name of Joaquin Agtarap, married to Caridad Garcia, is not sufficient proof that
the properties were acquired during the spouses’ coverture. 27 The phrase "married to Caridad Garcia" in the TCTs is merely descriptive of the civil status of Joaquin as the
registered owner, and does not necessarily prove that the realties are their conjugal properties. 28
Neither can Sebastian’s claim that Joaquin’s estate could have already been settled in 1965 after the payment of the inheritance tax be upheld. Payment of the inheritance
tax, per se, does not settle the estate of a deceased person. As provided in Section 1, Rule 90 of the Rules of Court—
SECTION 1. When order for distribution of residue made. -- When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is
entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive share to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond,
in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.
Thus, an estate is settled and distributed among the heirs only after the payment of the debts of the estate, funeral charges, expenses of administration, allowance to the
widow, and inheritance tax. The records of these cases do not show that these were complied with in 1965.
As regards the issue raised by Sebastian on the legitimacy of Joseph and Teresa, suffice it to say that both the RTC and the CA found them to be the legitimate children of
Jose. The RTC found that Sebastian did not present clear and convincing evidence to support his averments in his motion to exclude them as heirs of Joaquin, aside from his
negative allegations. The RTC also noted the fact of Joseph and Teresa being the children of Jose was never questioned by Sebastian and Eduardo, and the latter two even
admitted this in their petitions, as well as in the stipulation of facts in the August 21, 1995 hearing. 29 Furthermore, the CA affirmed this finding of fact in its November 21,
2006 Decision.30
Also, Sebastian’s insistence that Abelardo Dagoro and Walter de Santos are not heirs to the estate of Joaquin cannot be sustained. Per its October 23, 2000 Order of
Partition, the RTC found that Gloria Agtarap de Santos died on May 4, 1995, and was later substituted in the proceedings below by her husband Walter de Santos. Gloria
begot a daughter with Walter de Santos, Georgina Samantha de Santos. The RTC likewise noted that, on September 16, 1995, Abelardo Dagoro filed a motion for leave of
court to intervene, alleging that he is the surviving spouse of Mercedes Agtarap and the father of Cecilia Agtarap Dagoro, and his answer in intervention. The RTC later
granted the motion, thereby admitting his answer on October 18, 1995. 31 The CA also noted that, during the hearing of the motion to intervene on October 18, 1995,
Sebastian and Eduardo did not interpose any objection when the intervention was submitted to the RTC for resolution. 32
Indeed, this Court is not a trier of facts, and there appears no compelling reason to hold that both courts erred in ruling that Joseph, Teresa, Walter de Santos, and Abelardo
Dagoro rightfully participated in the estate of Joaquin. It was incumbent upon Sebastian to present competent evidence to refute his and Eduardo’s admissions that Joseph
and Teresa were heirs of Jose, and thus rightful heirs of Joaquin, and to timely object to the participation of Walter de Santos and Abelardo Dagoro. Unfortunately,
Sebastian failed to do so. Nevertheless, Walter de Santos and Abelardo Dagoro had the right to participate in the estate in representation of the Joaquin’s compulsory heirs,
Gloria and Mercedes, respectively.33
This Court also differs from Eduardo’s asseveration that the CA erred in settling, together with Joaquin’s estate, the respective estates of Lucia, Jesus, Jose, Mercedes, and
Gloria. A perusal of the November 21, 2006 CA Decision would readily show that the disposition of the properties related only to the settlement of the estate of Joaquin.
Pursuant to Section 1, Rule 90 of the Rules of Court, as cited above, the RTC was specifically granted jurisdiction to determine who are the lawful heirs of Joaquin, as well as
their respective shares after the payment of the obligations of the estate, as enumerated in the said provision. The inclusion of Lucia, Jesus, Jose, Mercedes, and Gloria in the
distribution of the shares was merely a necessary consequence of the settlement of Joaquin’s estate, they being his legal heirs.
However, we agree with Eduardo’s position that the CA erred in distributing Joaquin’s estate pertinent to the share allotted in favor of Milagros. Eduardo was able to show
that a separate proceeding was instituted for the probate of the will allegedly executed by Milagros before the RTC, Branch 108, Pasay City. 34 While there has been no
showing that the alleged will of Milagros, bequeathing all of her share from Joaquin’s estate in favor of Eduardo, has already been probated and approved, prudence
dictates that this Court refrain from distributing Milagros’ share in Joaquin’s estate.
It is also worthy to mention that Sebastian died on January 15, 2010, per his Certificate of Death. 35 He is survived by his wife Teresita B. Agtarap (Teresita) and his children
Joaquin Julian B. Agtarap (Joaquin Julian) and Ana Ma. Agtarap Panlilio (Ana Ma.).
Henceforth, in light of the foregoing, the assailed November 21, 2006 Decision and the March 27, 2007 Resolution of the CA should be affirmed with modifications such
that the share of Milagros shall not yet be distributed until after the final determination of the probate of her purported will, and that Sebastian shall be represented by his
compulsory heirs.
WHEREFORE, the petition in G.R. No. 177192 is DENIED for lack of merit, while the petition in G.R. No. 177099 is PARTIALLY GRANTED, such that the Decision dated
November 21, 2006 and the Resolution dated March 27, 2007 of the Court of Appeals are AFFIRMED with the following MODIFICATIONS: that the share awarded in favor of
Milagros Agtarap shall not be distributed until the final determination of the probate of her will, and that petitioner Sebastian G. Agtarap, in view of his demise on January
15, 2010, shall be represented by his wife Teresita B. Agtarap and his children Joaquin Julian B. Agtarap and Ana Ma. Agtarap Panlilio.
These cases are hereby remanded to the Regional Trial Court, Branch 114, Pasay City, for further proceedings in the settlement of the estate of Joaquin Agtarap. No
pronouncement as to costs.
SO ORDERED.
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and
CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, 
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee, 
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja,plaintiff-appellee, 
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.
 
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of the testate estate of Francisco de Borja,  1 from the
approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose
de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II,
in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the
Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not
a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administrator in Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as
Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor
and administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the
testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's
marriage to Francisco was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at
bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a
century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963,  2 by and between "[T]he heir and son of Francisco de
Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco
de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the compromise agreement
are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton
Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims,
etc., between them in connection with the administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of the
estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate
Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia
Maronilla
with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand Pesos
(P800,000) Philippine Currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto,
 Cayetano and Matilde, all surnamed de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the
estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to
any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full
payment of the proceeds of the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines, amounting to approximately P30,000.00 and also assumes payment of her
1/5 share of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by
the buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid
directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due
her under paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding
certified checks/treasury warrants, who, in turn, will issue the corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns, hereby forever
mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or
sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each
other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil
Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely,
absolutely and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from
the administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of
Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary
share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers,
titles and documents belonging to Francisco de Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding receive
thereof.
7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph 1 of this agreement and upon
receipt of the total and full payment of the proceeds of the sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment of the said sale will
render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines, the 12th of October, 1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances.
The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de
Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R.
case No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on
the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara.
74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the
basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no
will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of Francisco de Borja having been
submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether
he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the
probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the agreement between Jose de Borja
and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco —
shall be considered as full — complete payment — settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of
Josefa Tangco, ... and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter
Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate
of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and
all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or
legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest
(Civil Code of the Philippines, Art. 777)  3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after
such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate.  4 Of course, the effect of such alienation is to be deemed
limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to
be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors,
for obvious reasons, if only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995  et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and
would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one
hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was
binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same. The only difference
between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the
Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a
judicial compromise.
 It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance, the same was  intended to have a
resolutory period of 60 days for its effectiveness. In support of such contention, it is averred that such a limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja,
except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following clause:
III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total and full
payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de
Borja; Provided that if no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners
within the period of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have
been finalized, since it bears no date, the day being left blank "this — day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended
to be so done, since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized contract entered into wit
Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the separate unformalize agreement with the other three Borja heirs. Hence,
the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's co-
heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties for
the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco
was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in
the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija
could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing
of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori  sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession
of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after
its execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties",
and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963,
which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had
unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not
preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara  ruling; that Annex "A" involved a compromise affecting Ongsingco's
status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja
should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June
1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as
heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary
interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to
the devaluation de facto  of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to
be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage to his first
wife, Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial)
partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of the conclusion reached by this Court
in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for
the sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its
resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and
their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54
Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de
Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal
(Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described
declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco
de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to
the effect that:
Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or
to the wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut the presumption, and declared
the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership De Borja-Tangco was solemnly
admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed
in the Special Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed
in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory
dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more,
Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in
December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa
Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First Instance
of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his
estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below
declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of
the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —
He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion
de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount
P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes
the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo
issue a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further
testified that —
Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a bachelor  and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by defendant-appellant Jose de Borja
since probate courts can not finally determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja
acquired his share of the original Hacienda with his private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive
property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
 (4) That which is purchased with exclusive money of the wife or of the husband.
We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his
share was plain hearsay, hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is
improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to
Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion
de Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco
de Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these
lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-
serving, and not admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal character of the property in
question; but as already noted, they are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco,
and as such of much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of
the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda
de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568
and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.
G.R. No. L-12190             August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, 
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

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

Vicente Esguerra, Sr. ............................................. 5 Bahagi

Fausto E. Gan ......................................................... 2 Bahagi

Rosario E. Gan ......................................................... 2 Bahagi

Filomena Alto .......................................................... 1 Bahagi

Beatriz Alto .............................................................. 1 Bahagi

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

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes,
Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that
it would be useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila,
Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in
the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina
Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated
by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several
weeks she was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this country in August 1950. However,
her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of November 1951 (Nov. 5). The
whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help
was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections
and oxygen were administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant,
Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent
wanted to keep her will a secret, so that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that
witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte
to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will
from her husband she would carry it around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true
that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears
that the same arguments, or most of them, were presented in the motion to reconsider; but they failed to induce the court a quo  to change its mind. The
oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be
subscribed by the testator and three credible witnesses in each  andevery page; such witnesses to attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and
authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the instrument is duly proved.
(Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony
of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that
they are "entirely written, dated, and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself  as material proof
of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate
of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of
any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may
deliberately lie in affirming it is in the testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some
expert witnesses, who after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has not been written by
the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence  are not available. And then the only guaranty of
authenticity3 — the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses  who have allegedly seen it and who declare that it was in
the handwriting of the testator? How can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's
handwriting have not examined it. His experts can not testify, because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form thereof,
and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked
document, and having no interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other
writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed was in the deceased's
handwriting. And the court and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as to the
contents  of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary — evidence the testimony of witnesses, in lieu of
the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art.
830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 — an implied admission that such loss or
theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its  identity to be
established by the three witnesses who depose that they have no reasonable doubt that the will  was written by the testator (Art. 691). And if the judge considers
that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether in the face of the document itself  they think the testator wrote it. Obviously, this they
can't do unless the will itself  is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think
it spurious.5 Such purpose is frustrated when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway
the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege  to comply with the will, if
genuine, a right which they  should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of Spain of June 5, 1925,
which denied  protocolization or probate to a document containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to
the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated,
must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento
olografo debera estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se otorque, resulta evidente que para la validez y
eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos requisitos, sino que de la
expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se encuentre  en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como consecuencia ineludible de ello,
forzoso es affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin
perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter. 6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla
al obispo de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda;
 e por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances,
traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We
hesitate, however, to make this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when
lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony
of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium of proof; if the ordinary
will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed,
their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter,
having no interest, could easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been lost — the forger
may have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three pages, and only one  of them need be signed, the substitution of the unsigned pages, which may
be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility of forgery — would be added to the several objections to
this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact  which they saw, namely the act of the
testator of subscribing the will; whereas in the case of a lost holographic will, the witnesses would testify as to their opinion  of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in
the appealed decision, we find it hard to believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and
Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this
leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted
with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-appellant, 
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
 
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza
Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator
as required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v.
Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an
order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will.
They argued that:
(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.
 In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose,
regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In
view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court
committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of
the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or
not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best
and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings
of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then
the authenticity of the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23,
1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
G.R. No. L-14003             August 5, 1960

FEDERICO AZAOLA, petitioner-appellant, 
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be
the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria
Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C)
one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures
appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of
the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further
exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the
penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his
counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same
transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda.
de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not
on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in
the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in
the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does
not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse
party.

Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent.
For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's
hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility.
That is evidently the reason why the second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established
for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory
only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805).
Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to
be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court
should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento
olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the
court expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in
our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary.

In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.
G.R. No. 123486           August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, 

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will
in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence
on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seño Vda. de Ramonal. 2
The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with
the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there
was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for probate, alleging that the holographic will was a forgery and that the same is
even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was
not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will
is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery. 1âwphi1.nêt

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer 6 to evidence, claiming that respondents
failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late Matilde Seño Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits. 7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely:
(1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced
and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the basis for
comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced
for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her
parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting
as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts.
In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay  further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and
entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga  testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the
deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the
holographic will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs.  Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for
pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time
she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seño Vda. de
Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:
Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas
2. Josefina Salcedo

3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978
 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs.  Singson, 109 Phil. 102, penned by
Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present
at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that —
in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested
as the proponent that the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced
of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be
 carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will
and the handwriting and signature therein, and allowed the will to probate.
Hence, this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. 1âwphi1.nêt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute
commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory. 11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is
imperative to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it
was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

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

Q.   From where?
A.   From the land rentals and commercial buildings at Pabayo-Gomez streets. 12

xxx     xxx     xxx
Q.   Who sometime accompany her?

A.   I sometimes accompany her.

Q.   In collecting rentals does she issue receipts?

A.   Yes, sir.13
xxx     xxx     xxx

Q.   Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them?
A.   Yes, sir.

Q.   Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?
A.   Matilde vda. De Ramonal.

Q.   Why do you say that is the signature of Matilde Vda. De Ramonal?

A.   I am familiar with her signature.

Q.   Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants?
A.   Yes, sir.

Q.   Why do you say so?

A.   Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

Q.   How is this record of accounts made? How is this reflected?

A.   In handwritten.14

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

Q.   Aside from that?

A.   Carrying letters.

Q.   Letters of whom?
A.   Matilde.

Q.   To whom?
A.   To her creditors.15

xxx     xxx     xxx
Q.   You testified that at time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to?

A.   Yes, sir.
Q.   Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A.   My Aunt.
 Q.   Why do you say this is the handwriting of your aunt?

A.   Because I am familiar with her signature. 16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a
document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of
Ms. Binanay. She testified that:
Q.   Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes?

A.   Yes, sir.
Q.   Who was in possession of that will?

A.   I.
Q.   Since when did you have the possession of the will?

A.   It was in my mother's possession.

Q.   So, it was not in your possession?

A.   Sorry, yes.
Q.   And when did you come into possession since as you said this was originally in the possession of your mother?

A.   1985.17
xxx     xxx     xxx

Q.   Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession?
A.   It was not given to me by my mother, I took that in the aparador when she died.

Q.   After taking that document you kept it with you?

A.   I presented it to the fiscal.

Q.   For what purpose?

A.   Just to seek advice.

Q.   Advice of what?
A.   About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive
of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seño Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q.   Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A.   Yes, sir.
Q.   She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct?
 A.   Yes, sir.19

xxx     xxx     xxx
Q.   Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?

A.   Yes, a little. The letter L is continuous.

Q.   And also in Matilde the letter L is continued to letter D?

A.   Yes, sir.
Q.   Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.

A.   Yes, sir.
Q.   And there is a retracing in the word Vda.?

A.   Yes, sir.20
xxx     xxx     xxx

Q.   Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is
only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?

A.   Yes, sir the handwriting shows that she was very exhausted.
Q.   You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted?

A.   In writing.
Q.   How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies?

A.   That was I think. (sic).

Q.   Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?
A.   Yes, sir.

Q.   You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?

A.   Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that:

Q.   You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you
rendered to Matilde Ramonal?

A.   During my stay I used to go with her to the church, to market and then to her transactions.
Q.   What else? What services that you rendered?

A.   After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q.   What was your purpose of going to her lawyer?
 A.   I used to be her personal driver.

Q.   In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal?
A.   Yes, sir.

Q.   How come that you acquired familiarity?

A.   Because I lived with her since birth.22

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

Q.   Why do you say that is her signature?

A.   I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she
saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q.   Do you know Matilde Vda de Ramonal?

A.   Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity.
Q.   Can you tell the name of the husband?

A.   The late husband is Justo Ramonal.24

xxx     xxx     xxx

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

xxx     xxx     xxx
Q.   You said after becoming a lawyer you practice your profession? Where?

A.   Here in Cagayan de Oro City.

Q.   Do you have services rendered with the deceased Matilde vda de Ramonal?

A.   I assisted her in terminating the partition, of properties.

Q.   When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?

A.   It is about the project partition to terminate the property, which was under the court before. 26
xxx     xxx     xxx

Q.   Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the
type written word Matilde vda de Ramonal, whose signature is this?
 A.   That is the signature of Matilde Vda de Ramonal.

Q.   Also in exhibit n-3, whose signature is this?

A.   This one here that is the signature of Mrs. Matilde vda de Ramonal. 27

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

xxx     xxx     xxx
Q.   Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A.   I am not familiar with the handwriting.

Q.   This one, Matilde Vda de Ramonal, whose signature is this?

A.   I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q.   Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this?
A.   Well, that is similar to that signature appearing in the project of partition.

Q.   Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that?
A.   As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q.   Why do you say that?

A.   Because there is a similarity in the way it is being written.

Q.   How about this signature in item no. 4, can you tell the court whose signature is this?
A.   The same is true with the signature in item no. 4. It seems that they are similar. 29

xxx     xxx     xxx
Q.   Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?

A.   Yes, it is similar to the project of partition.

Q.   So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the
signature of the project of partition which you have made?
A.   That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will,
citing the decision in Azaola vs.  Singson,31ruling that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial
ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three
witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The
only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the
signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in
some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in several documents such as the application letter for pasture permit dated December
30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike
that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in
support of their opposition to the probate of the holographic will of the deceased Matilde Seño vda. de Ramonal.1âwphi1.nêt

No costs.
SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

G.R. No. 176831               January 15, 2010
UY KIAO ENG, Petitioner, 
vs.
NIXON LEE, Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the August 23, 2006 Amended Decision 1 of the Court of Appeals
(CA) in CA-G.R. SP No. 91725 and the February 23, 2007 Resolution, 2 denying the motion for reconsideration thereof.
The relevant facts and proceedings follow.
Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now in the custody of petitioner Uy Kiao Eng, his mother,
respondent Nixon Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as Civil Case No. 01100939, before the Regional Trial Court (RTC)
of Manila, to compel petitioner to produce the will so that probate proceedings for the allowance thereof could be instituted. Allegedly, respondent had already
requested his mother to settle and liquidate the patriarch’s estate and to deliver to the legal heirs their respective inheritance, but petitioner refused to do so
without any justifiable reason.3
In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the same be dismissed for failure to state a cause of action,
for lack of cause of action, and for non-compliance with a condition precedent for the filing thereof. Petitioner denied that she was in custody of the original
holographic will and that she knew of its whereabouts. She, moreover, asserted that photocopies of the will were given to respondent and to his siblings. As a
matter of fact, respondent was able to introduce, as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela City. Petitioner further
contended that respondent should have first exerted earnest efforts to amicably settle the controversy with her before he filed the suit. 4
The RTC heard the case. After the presentation and formal offer of respondent’s evidence, petitioner demurred, contending that her son failed to prove that she
had in her custody the original holographic will. Importantly, she asserted that the pieces of documentary evidence presented, aside from being hearsay, were all
immaterial and irrelevant to the issue involved in the petition—they did not prove or disprove that she unlawfully neglected the performance of an act which the
law specifically enjoined as a duty resulting from an office, trust or station, for the court to issue the writ of mandamus. 5
The RTC, at first, denied the demurrer to evidence. 6 In its February 4, 2005 Order,7 however, it granted the same on petitioner’s motion for reconsideration.
Respondent’s motion for reconsideration of this latter order was denied on September 20, 2005. 8 Hence, the petition was dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied the appeal for lack of merit. It ruled that the writ of
mandamus would issue only in instances when no other remedy would be available and sufficient to afford redress. Under Rule 76, in an action for the settlement
of the estate of his deceased father, respondent could ask for the presentation or production and for the approval or probate of the holographic will. The CA
further ruled that respondent, in the proceedings before the trial court, failed to present sufficient evidence to prove that his mother had in her custody the original
copy of the will.91avvphi1
Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended Decision, 10 granted the motion, set aside its earlier ruling,
issued the writ, and ordered the production of the will and the payment of attorney’s fees. It ruled this time that respondent was able to show by testimonial
evidence that his mother had in her possession the holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this motion in the further assailed February 23, 2007
Resolution.11
Left with no other recourse, petitioner brought the matter before this Court, contending in the main that the petition for mandamus is not the proper remedy and
that the testimonial evidence used by the appellate court as basis for its ruling is inadmissible. 12
The Court cannot sustain the CA’s issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—
SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of
the wrongful acts of the respondent.13
Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal,
or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party
to whom the writ is directed or from operation of law. 14 This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be
resorted to for the purpose of enforcing the performance of duties in which the public has no interest. 15 The writ is a proper recourse for citizens who seek to
enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. 16 As the
quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law
enjoins as a duty resulting from an office, trust or station. 17
The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by law. 18 Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a substantial doubt
exists, although objection raising a mere technical question will be disregarded if the right is clear and the case is meritorious. 19 As a rule, mandamus will not lie in
the absence of any of the following grounds: [a] that the court, officer, board, or person against whom the action is taken unlawfully neglected the performance of
an act which the law specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or person has unlawfully excluded
petitioner/relator from the use and enjoyment of a right or office to which he is entitled. 20 On the part of the relator, it is essential to the issuance of a writ of
mandamus that he should have a clear legal right to the thing demanded and it must be the imperative duty of respondent to perform the act required. 21
Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce contractual obligations. 22 Generally, mandamus will not lie to
enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. 23 The
writ is not appropriate to enforce a private right against an individual. 24 The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice
would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. 25  To preserve its
prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public. 26
Moreover, an important principle followed in the issuance of the writ is that there should be no plain, speedy and adequate remedy in the ordinary course of law
other than the remedy of mandamus being invoked. 27 In other words, mandamus can be issued only in cases where the usual modes of procedure and forms of
remedy are powerless to afford relief. 28 Although classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by
equitable principles.29 Indeed, the grant of the writ of mandamus lies in the sound discretion of the court.
In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here—the production of the original holographic will—is in the
nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and
adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for
purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in
his possession or not. Rule 76, Section 1 relevantly provides:
Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any
time, after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or
destroyed.
An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original holographic will. Thus—
SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will
to the court having jurisdiction, or to the executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a will shall within twenty (20) days after he knows of the death of the
testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of
the trust or his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the duties required in the two last preceding sections without excuse
satisfactory to the court shall be fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver
the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will. 30
There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the subject will, the remedy of mandamus cannot be availed
of. Suffice it to state that respondent Lee lacks a cause of action in his petition. Thus, the Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23, 2006 Amended Decision and the February 23, 2007 Resolution
of the Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is DISMISSED.
SO ORDERED.
G.R. No. 169144               January 26, 2011
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS, Petitioners, 
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will executed abroad by a foreigner although it has not been probated in its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized United States (U.S.) citizen, died single and childless. In the last will and
testament she executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had left properties in the
Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for
the probate of Ruperta’s will and for his appointment as special administrator of her estate. 1 On October 15, 2003, however, petitioners Manuel Miguel Palaganas
(Manuel) and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the ground that Ruperta’s will should not be probated in the
Philippines but in the U.S. where she executed it. Manuel and Benjamin added that, assuming Ruperta’s will could be probated in the Philippines, it is invalid
nonetheless for having been executed under duress and without the testator’s full understanding of the consequences of such act. Ernesto, they claimed, is also not
qualified to act as administrator of the estate.
Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and Sergio, were on separate occasions in the Philippines for a short visit, respondent Ernesto filed
a motion with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the RTC directed the parties to submit their memorandum on the issue
of whether or not Ruperta’s U.S. will may be probated in and allowed by a court in the Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate Ruperta’s last will; (b) appointing respondent Ernesto as special administrator at the request of
Sergio, the U.S.-based executor designated in the will; and (c) issuing the Letters of Special Administration to Ernesto.
Aggrieved by the RTC’s order, petitioner nephews Manuel and Benjamin appealed to the Court of Appeals (CA), 3arguing that an unprobated will executed by an
American citizen in the U.S. cannot be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed order of the RTC,5 holding that the RTC properly allowed the probate of the will, subject to
respondent Ernesto’s submission of the authenticated copies of the documents specified in the order and his posting of required bond. The CA pointed out that
Section 2, Rule 76 of the Rules of Court does not require prior probate and allowance of the will in the country of its execution, before it can be probated in the
Philippines. The present case, said the CA, is different from reprobate, which refers to a will already probated and allowed abroad. Reprobate is governed by
different rules or procedures. Unsatisfied with the decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed by a foreigner abroad may be probated in the Philippines although it has not been previously
probated and allowed in the country where it was executed.
The Court’s Ruling
Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad must first be probated and allowed in the country of its execution before it can
be probated here. This, they claim, ensures prior compliance with the legal formalities of the country of its execution. They insist that local courts can only allow
probate of such wills if the proponent proves that: (a) the testator has been admitted for probate in such foreign country, (b) the will has been admitted to probate
there under its laws, (c) the probate court has jurisdiction over the proceedings, (d) the law on probate procedure in that foreign country and proof of compliance
with the same, and (e) the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of
their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect
in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his
country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the RTC of the
province where he has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the executor, devisee, or
legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages,
and residences of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and character of the property of the estate; (d) the name of
the person for whom letters are prayed; and (e) if the will has not been delivered to the court, the name of the person having custody of it. Jurisdictional facts refer
to the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, the estate he left in such province.7 The rules do not require proof that the foreign will has already been allowed and probated in the country of its
execution.
In insisting that Ruperta’s will should have been first probated and allowed by the court of California, petitioners Manuel and Benjamin obviously have in mind the
procedure for the reprobate of will before admitting it here. But, reprobate or re-authentication of a will already probated and allowed in a foreign country is
different from that probate where the will is presented for the first time before a competent court. Reprobate is specifically governed by Rule 77 of the Rules of
Court. Contrary to petitioners’ stance, since this latter rule applies only to reprobate of a will, it cannot be made to apply to the present case. In reprobate, the local
court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.
Besides, petitioners’ stand is fraught with impractically.1âwphi1 If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good
as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and
allowed by the proper court.8
Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling that the court can take cognizance of the petition for probate of Ruperta’s
will and that, in the meantime, it was designating Ernesto as special administrator of the estate. The parties have yet to present evidence of the due execution of
the will, i.e. the testator’s state of mind at the time of the execution and compliance with the formalities required of wills by the laws of California. This explains the
trial court’s directive for Ernesto to submit the duly authenticated copy of Ruperta’s will and the certified copies of the Laws of Succession and Probate of Will of
California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.
SO ORDERED.
G.R. No. L-29300 June 21, 1978

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs, namely his
above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA
GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners, 
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS,
VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS,
DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R.
HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS,
AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-
BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA
HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-
ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and
LEONA HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.

Joaquin R Mitosis for private respondents.

 

AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered
his order of January 10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one million pesos. The
undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as
survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In
that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share
would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had
treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca
land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the
oppositors did not present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed
Gallanosa as executor. Judge Rivera specifically found that the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza,
fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various
parts of Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate
amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in
his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate trial from the order
of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro
Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of
those lands en concepto de dueño trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared the owners of the lands
trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C. Mañalac
dismiss the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate proceedings in Civil Case No. 3171 of this Court for- the
purpose of contesting the probate of the will of (the) late Florentino Hitosis; trial had their opposition prospered trial the will denied of probate, the proceedings
would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would have been made in accordance
with the provisions of law governing legal or intestate succession ... , in which case the said plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis,
would have succeeded to the ownership and possession of the 61 parcels of land in question forming part of his estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their opposition trial ordered the probate of his will. From this decision (Annex K) legalizing the
said will, the oppositors did not file any appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the said decision had
become final trial it now constitutes a bar to any action that the plaintiffs may institute for the purpose of a redetermination of their rights to inherit the properties
of the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No. 3171, in which the herein plaintiffs or their predecessors-in-interest had intervened as
parties oppositors, constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the
properties of the late Florentino Hitosis; consequently, their present claim to the ownership trial possession of the 61 parcels of land in question is without any
legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their heirs,
with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the probate of
the will another action in the same court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the recovery of the
same sixty-one parcels of land. They prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit, caused the execution trial simulation of the document purporting to be the last will
trial testament of Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in possession of the lands in question, in their 1967 complaint they
admitted that since 1939, or from the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV of the complaint, p. 70,
Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696 were decided trial which
was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration
Respondent Judge. granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of
dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents have a cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-
one parcels of land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No.
696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial
unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands
adjudicated to the defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of The complaint of the same parties that the same court
dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by
prescription, acquisitive trial extinctive, or by what are known in the jus civile  trial the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take effect, it has to be probated, legalized or allowed in the proper
testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara
vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2,
Rule 2 trial sec. 1, Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial
distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by former judgment, Rule 39 of the Rules of
Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the
judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or order is conclusive upon the title
to the thing the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating of the same
thing trial under the same title trial in the same capacity;

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily included therein or necessary thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art.
838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or undue influence; that the
will was signed by him in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery. Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil.
448).

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18
SCRA 47).

In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the decree of probate had become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was admitted to probate without objection. No appeal was taken from said order. It was
admitted that due trial legal notice had been given to all parties. Fifteen months after the date of said order, a motion was presented in the lower court to have
said will declared null and void, for the reason that fraud had been practised upon the deceased in the making of his will.
 Held: That under section 625 of Act No. 190, the only time given parties who are displeased with the order admitting to probate a will, for an appeal is the time
given for appeals in ordinary actions; but without deciding whether or not an order admitting a will to probate will be opened for fraud, after the time allowed for
an appeal has expired, when no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive as to its due execution trial as to the testamentary capacity of The testator. (See Austria vs. Heirs of
Ventenilla. 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having been rendered
in a proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs.
Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata  with respect to private respondents' complaint, The 1952 order of dismissal rendered by Judge
Mañalac in Civil Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment under the
aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized
that the final adjudications in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the nullification of the final orders trial
judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was to put an end to controversies." (Dy Cay vs. Crossfield
and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set aside only on the grounds of
(a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the
judgment is four years from the discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed
because the rule in article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G.
4410, allegedly decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to voidcontracts, a ruling elevated to the
category of a codal provision in article 1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to verify the misrepresentation of plaintiffs'
counsel that the Dingle case was decided by this Court. An elementary knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs' counsel in arguing
that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs against the private
respondents.

SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.

Concepcion, Jr., J., is on leave.

G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner, 
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.
 
AQUINO, J.:ñé+.£ªwph!1
The question in this case is whether a petition for allowance of wills and to annul a partition, approved in anintestate proceeding by Branch 20  of the Manila Court
of First Instance, can be entertained by its Branch 38  (after a probate in the Utah district court).
Antecedents. — Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was survived by his second
wife, Maxine Tate Grimm and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and Ethel Grimm Roberts
(McFadden), his two children by a first marriage which ended in divorce (Sub-Annexes A and B. pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself
and his second wife. The second win disposed of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate
situated in this country. In the will dealing with his property outside this country, the testator said: têñ.£îhqwâ£
I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm
Roberts), because I have provided for each of them in a separate will disposing of my Philippine property. (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District
Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were notified
of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition  filed in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third
Judicial District Court admitted to probate  the two wills and the codicil It was issued upon consideration of the stipulation dated April 4, 1978 "by and between the
attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm
Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita
Kegley Grimm as the second parties, with knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. It was
signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the attorney-in-fact of
Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's Philippine estate (par.
2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000 plus the homes
in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable estate". It recognized that the estate was liable to pay
the fees of the Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable Estate" and that Ethel and Juanita Morris should each
receive at least 12-1/2% of the total of the net distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was executed by the
parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after Grimm's death, or January 9, 1978, his daughter of the first
marriage, Ethel, 49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate proceeding
No. 113024for the settlement of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to dismiss the intestate proceeding on the ground of the
pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix, She submitted to the court a copy
of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate
case withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this was done
pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in the record.
The three administrators submitted an inventory. With the authority and approval of the court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl
Project, a business owned by the deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out that the buyer, Makiling
Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p.
135, Record).
Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge
Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to his four
children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer who on August 9, moved to defer approval of
the project of partition. The court considered the motion moot considering that it had already approved the declaration of heirs and project of partition (p. 149,
Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with Makiling Management Co., Inc. when the Palawan Pearl
Project was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies she imputed
to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October 2, 1979. It was stated therein that Maxine paid
P1,992,233.69 as estate tax and penalties and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted the
certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no movement or activity in the intestate case. On April 18, 1980 Juanita Grimm Morris,
through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the present intestate estate be closed."
Del Callar, Maxine's lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in collaboration with Del Callar as counsel for Maxine and
her two children, Linda and Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on March 11, 1978, when it filed a
motion to dismiss the intestate proceeding and furnished the court with a copy of Grimm's will. As already noted, the firm was then superseded by lawyer
Limqueco.
Petition to annul partition and testate proceeding No. 134559. —  On September 8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and
Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by
the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to
account for the properties received by them and to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement
was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and
prohibition in this Court, praying that the testate proceeding be dismissed, or. alternatively that the two proceedings be consolidated and heard in Branch 20 and
that the matter of the annulment of the Utah compromise agreement be heard prior to the petition for probate (pp. 22-23, Rollo).
Ruling. — We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and
allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that
the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss
and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other
papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs.
SO ORDERED.1äwphï1.ñët
Makasiar (Chairman), Guerrero and De Castro, JJ., concur.
Escolin, J., concur in the result.
Concepcion, Jr. and Abad Santos, JJ., took no part.
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.
 
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982,
as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982
denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will
that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal
wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my
above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons
and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife  with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and
affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by
undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner
having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared
the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared
null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence
of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in
equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of
the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some
other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of
Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by
the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the
testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid,
et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is
expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution
and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise.  (Fernandez v.
Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary
capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature.
xxx xxx xxx
 True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent
and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do
and pass upon certain provisions of the Will.
In Nuguid v. Nuguid  (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced
heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity
of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony
if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-
23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all
the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the
respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it
ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in the event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense, plus
 added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the
probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos  shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were
his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner
and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to
the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private respondents:
First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the
devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of
the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of
August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If
there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it
would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the
marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about
30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her
anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly
lived for 22 years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin
Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she
was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain
 human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was
precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.
G.R. No. L-24819               May 30, 1969
TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased, ANDRES PASCUAL, petitioner-appellee, 
vs.
PEDRO DE LA CRUZ, ET AL., oppositors-appellants.
Avelino Pascual for petitioner-appellee.
Raul Manglapus and Feria, Feria, Lugtu and La'O for oppositors-appellants.
REYES, J.B.L., J.:
This is an appeal from the decision of the Court of First Instance of Rizal (in Sp. Proc. No. 3312) admitting to probate the purported will of Catalina de la Cruz.
On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas,
Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the
said will as executor and sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the
formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that
the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through
fraud.
After hearing, during which the parties presented their respective evidences, the probate court rendered judgment upholding the due execution of the will, and, as
therein provided, appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. The oppositors
appealed directly to the Court, the properties involved being valued at more than P300,000.00, raising only the issue of the due execution of the will.
In this instance, oppositors-appellees claim that the lower court erred in giving credence to the testimonies of the subscribing witnesses and the notary that the will
was duly executed, notwithstanding the existence of inconsistencies and contradictions in the testimonies, and in disregarding their evidence that the will was not
signed by all the witnesses in the presence of one another, in violation of the requirement of the law.
On this point, the lower court said:
Regarding the alleged contradictions and inconsistencies in the testimony of the three attesting witnesses and of the Notary Public, some of which have
been enumerated in the Memorandum of Oppositors' counsel, this Court has taken pains in noting said inconsistencies but found the same not substantial
in nature sufficient to discredit their entire testimony on the due execution of Exhibit "D". It is to be noted that Exhibit "D" was signed in 1954 and that the
attesting witnesses testified in Court in 1962 or after a lapse of eight years from the date of the signing of the document. It is, therefore, understandable
and reasonable to expect that said witnesses will not retain a vivid picture of the details surrounding the execution and signing of the will of Catalina de la
Cruz. What is important and essential is that there be unanimity and certainty in their testimony regarding the identity of the signatures of the testatrix, the
attesting witnesses, and the Notary Public, and the fact that they were all present at the time those signatures were affixed on the document Exhibit "D". ....
In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing with are generally regarded as the best qualified to testify on its due
execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not
overcome by competent evidence, direct or circumstantial.  2 For it must be remembered that the law does not simply require the presence of three instrumental
witnesses; it demands that the witnesses be credible.  3
In connection with the issue under consideration, we agree with the trial judge that the contradictions and inconsistencies appearing in the testimonies of the
witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing
by the witnesses; and the length of time it took to complete the act), relate to unimportant details of the impressions of the witnesses about certain details which
could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves, would not alter the probative value
of their testimonies on the due execution of the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)].
In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil. 1076, this Court ruled:
For the purpose of determining the due execution of a will, it is not necessary that the instrumental witnesses should give an accurate and detailed account
of the proceeding, such as recalling the order of the signing of the document by the said witnesses. It is sufficient that they have seen or at least were so
situated at the moment that they could have seen each other sign, had they wanted to do so. In fact, in the instant case, at least two witnesses, ... both
testified that the testator and the 3 witnesses signed in the presence of each and every one of them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra vs. Neyra, 42
Off. Gaz. 2817; Fernandez vs. Tantoco, 49 Phil. 380.).
Neither do we believe that the fact that the witnesses were better known to proponent Andres Pascual than to the testatrix suffices to render their testimony
suspect. Under the circumstances, considering the admitted fact that when the will was executed (1954) the testatrix was already 83 years old, suffering from
rheumatism to the extent that she had to wear thick socks and soft shoes, it did not unlikely that she should have entrusted the task of requesting them to act as
witnesses to Andres Pascual himself, albeit the said witnesses, testifying eight years later, should have stated that they were asked by Catalina to witness her
testament. The error of recall, considering the eight-year interval, is consonant with the well known vagaries of human memory and recollection, particularly since
the main detail that must have stuck in his minds is that they did witness the signing of the will, upon which their attention must have principally concentrated.
That they did so is attested by their signatures and those of the deceased testatrix, which are nowhere impugned; nor is there any claim by appellants that the
latter was incapable of reading and understanding the will that she signed. In fact, the evidence is that she did read it before signing. The authorities are to the
effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former,  4 so that the proven friendship between
the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the
will.
Appellant's main reliance is the alleged tape recording of a conversation between instrumental witness Manuel Jiongco and oppositor Pedro B. Cruz at the latter's
house sometime in 1960 (which recording was admittedly taken without Jiongco's knowledge) wherein said witness is supposed to have stated that when he
signed the will the other witnesses' signatures were already affixed, and were not then present, and that he (Jiongco) signed the document in 1958 or 1959 (Exhibit
22; transcription; Exhibit 23 et. seq.).
There are two circumstances that militate against giving credence to particular evidence. The first is that there is no adequate proof that the declarations tape
recorded were in fact made by Jiongco. The latter denied that the voice was his, and in this respect the trial judge stated (Record on Appeal, pages 83-84):
We do not doubt the fact that Manuel Jiongco was in the house of Pedro Cruzon the occasion that Exhibit "23" was taken. But it is important to note that
when said recording was replayed before Manuel Jiongco in Court he denied that the voice which uttered the above-quoted portions in the conversation
was his. So that with the denial of Manuel Jiongco, the Court was left with no other recourse than to make its own comparison between the natural voice of
the witness, Manuel Jiongco, while testifying on the witness stand and his supposed recorded voice in Exhibit "23". It is to be admitted that we noted some
similarity between the two voices but it was not enough to justify a categorical and definite conclusion that the recorded voice identified by Pedro Cruz to
be that of Manuel Jiongco is in truth and in fact the voice of the latter. Between a testimony given in Court under oath which was subjected to and stood of
rigorous cross-examination and loose statements made out of Court which even then are of doubtful source, this Court gives full faith and credence to the
former. And this is true even if this particular witness admits having a poor memory, and his trustworthiness is assailed due to a previous record of an
administrative case filed against him wherein he was fined for a charge of falsification of public document (see Exh. "25"). This is so, because the veracity of
his testimony in Court regarding the due execution of Exhibit "D" is corroborated and confirmed by the testimony of the two other attesting witnesses to
the document and the Notary Public who notarized the same.
Not having heard Jiongco testify, this court is not in a position to contradict the appreciation of the trial court that the voice in the tape recording was not really
that of Jiongco. And considering that he denied that fact under oath, that the tape recording was not supported by truly impartial evidence, and was done without
the knowledge of the witness, we cannot see our way clear to rule that Jiongco has been successfully impeached, and shown guilty of false testimony. It would be
dangerous to rule otherwise.
The second point that renders incredible the alleged assertion of Jiongco in the tape recording, that he signed the testament only in 1958 or 1959, is that in the
Notarial Registry of the notary, Gatdula, the ratification of the testament appears among the entries for 1954, as well as in the corresponding copies (Exhibit I) filed
by him with Bonifacio Sumulong, the employee in charge of the Notarial Section of the Clerk of Court's office, who produced them at the trial upon subpoena, and
who testified to his having searched for and found them in the vaults of the Clerk of Court's office. No evidence exists that these documents were not surrendered
and filed at the Clerk of Court's office, as required by law, and in the regular course of official duty. Certainly, the notary could not have reported in 1954 what did
not happen until 1958.
In view of the evidence, we do not feel justified in concluding that the trial court erred in accepting the concordant testimony of the instrumental witnesses as
warranting the probate of the will in question, taking into account the unexcelled opportunity of the court a quo to observe the demeanor, and judge the
credibility, of the witness thereby. Furthermore, it would not be the first time in this jurisdiction that a will has been admitted to probate even if the instrumental
witness testified contrary to the other two, provided the court is satisfied, as in this case, that the will was executed and attested in the manner provided by law
(Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater reason to
admit the will to probate where only the testimony of one witness is subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on the ground that the execution of the will was tainted by fraud and undue influence exerted by proponent on
the testarix, and affirm that it was error for the lower court to have rejected their claim. Said the court in this regard (Record on Appeal, page 87):
It is a settled rule in this jurisdiction that the mere fact that a Will was made in favor of a stranger is not in itself proof that the same was obtained through
fraud and undue pressure or influence, for we have numerous instances where strangers are preferred to blood relatives in the institution of heirs. But in
the case at bar, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she
considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him
with affection so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her property in her Will without any objection from Catalina
and Valentina Cruz.
Before considering the correctness of these findings, it is worthwhile to recall the basic principles on undue pressure and influence as laid down by the
jurisprudence of this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator
as to destroy his free agency and make him express the will of another rather than his own (Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30
June 1964; Teotico vs. Del Val, L-18753, 26 March 196); that the contention that a will was obtained by undue influence or improper pressure cannot be sustained
on mere conjecture or suspicion, as it is enough that there was opportunity to exercise undue influence, or a possibility that it may have been exercised (Ozaeta vs.
Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually
exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on the person challenging the will to show that such influence
was exerted at the time of its execution (Teotico vs. Del Val, ante); that mere general or reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez
Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or omission of
relatives, not forced heirs, evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).
Tested against these rulings, the circumstances marshalled by the contestants certainly fail to establish actual undue influence or improper pressure exercised on
the testarix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything
unless I knew it" (t.s.n., page 7, 27 January 1962), which does not amount to proof that she would sign anything that proponent desired. On the contrary, the
evidence of contestants-appellants, that proponent purchased a building in Manila for the testarix, placed the title in his name, but caused the name "Catalina de la
Cruz" to be painted thereon in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower to destroy
the free will of the testarix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need
to recourse to the deception averred.lawphi1.ñet
Nor is the fact that it was proponent, and not the testarix, who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the
reason that the rheumetism of the testarix made it difficult for her to look for all the witnesses. That she did not resort to relatives or friends is, likewise explainable:
it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to
unpleasant importunity and recriminations that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise,
account for the failure to probate the testament during her lifetime.
We conclude that the trial court committed no error in finding the appellant's evidence established at most grounds for suspicion but fell far short of establishing
actual exercise of improper pressure or influence. Considering that testarix considered proponent as her own son, to the extent that she expressed no objection to
his being made the sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormalin her instituting proponent also as her own
beneficiary. As stated by the Court in the Knutson case —
The truth of the matter is that bequests and devises to those in whom the testator has confidence and who have won his affection are more likely to be
free from undue influence that bequests or devises to others. (In re Knutson's Will, 41 Pac. 2d 793).
Appellants invoked presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting of execution of the will
favoring him; but since the will was prepared by Atty. Pascual, although nephew of the proponent, we do not think the presumption applies; for in the normal
course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional
conduct, or of having conspired to falsify a statement, except upon clear proof.
The charge of fraud, being premised on the existence of undue influence, needs no separate discussion.
WHEREFORE, the decree of probate appealed from is affirmed; with costs against contestants-appellants.
Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano and Barredo, JJ., concur.
Teehankee, J., took no part.
Concepcion, C.J., and Castro, J., are on leave, took no part.